Brown Act suit goes to trial Brown Act suit goes to trial (August 18, 2000)

Judge to render verdict within 30 days

By Karen Willemsen

After nearly three years of political and legal wrangling, Wesley v. Faravelli finally got its day in court Monday.

Judge Mary Jo Levinger of the Santa Clara County Superior Court presided over the case, which was originally filed in September, 1997. The suit alleges that the Mountain View City Council routinely uses a loophole in California's open meeting law to talk about items not on the agenda during closed session meetings.

Mountain View resident and attorney Gary Wesley, the plaintiff, represented himself at the one-day trial, during which he questioned City Manager Kevin Duggan and current city council members on the witness stand.

Judge Levinger listened to five hours of testimony and legal arguments, most presented by Wesley.

At the heart of the case is a March 25, 1997, closed session agenda that indicated the council planned to discuss the Chamber of Commerce's lease with the city.

Wesley asserted the council strayed beyond the parameters of the meeting's agenda, and that the agenda was not properly noticed. He also contended the council may be continuing a practice of discussing items not on the agenda in closed sessions.

Wesley said that in the city's handling of the closed session, it violated the Ralph M. Brown Act, which requires elected officials to meet in open session on a majority of issues.

A key element of Wesley's argument was the city's interpretation of a real estate exception in the Brown Act. That exception allows closed meetings to be convened for the purpose of instructing the city's real property manager on upcoming lease negotiations. The real estate property manager oversees Mountain View's city-owned real estate.

Wesley contended that because no agreement with the Chamber of Commerce was forthcoming after the March 25, 1997, meeting, the council had inappropriately taken advantage of the Brown Act's real estate exception.

Duggan's testimony, the longest of all the witnesses', lasted about three hours. In response to questions from Wesley about city policy, Duggan said he helps the mayor set the agendas for both open and closed council meetings. He also stated that he defers to the city attorney when he is uncertain about what can and cannot be discussed in closed session. Wesley questioned each of the current council members for about 20 minutes, with the exception of Michael Kasperzak, who was on the stand for about an hour. Kasperzak was questioned in his capacities as both a council member and a former president of the Chamber of Commerce.

The council members all stated they found nothing improper about the wording of the March, 1997, agenda.

Wesley, who enlisted attorney Melvin Emerich as his co-counsel, did not take the stand.

In his closing arguments, Wesley stated that "the violations continue on as a policy to this day. It's about what the council is still doing today. Their aim was to deceive the public."

George Waters, of Olson, Hagel, Waters and Fishburn, the firm serving as co-counsel with City Attorney Michael Martello in the matter, disagreed.

"Rarely has so much been said about so little," Waters said. "The plaintiff is attempting to spin conspiratorial theories. It's important to note that a later public study session was held on the chamber that was broadcast on TV. You can't get more public than that. Every citizen in Mountain View was invited to participate."

Levinger did not render her opinion in court. Her decision is due within 30 days of the trial date.

Wesley said if he loses the lawsuit, he will file an appeal.