In March, the Cypress City Council voted 4-1 in a closed session to reject a demand that the city move to by-district elections.
That quiet decision stirred a vociferous response — with some residents arguing that the vote, whatever its outcome, needed to be redone in public view.
Now the city faces a lawsuit, filed two weeks ago in Orange County Superior Court, alleging the behind-closed-doors vote violated California’s open government law known as the Brown Act.
Open-government watchdog group Californians Aware filed the lawsuit after it first sent a letter in mid-April threatening litigation. The City Council later rebutted the letter in a 4-1 vote, mirroring its decision to reject by-district elections. (Councilwoman Frances Marquez was the lone no vote both times.)
“City Council unlawfully met a total of eleven times in closed session to discuss and ultimately vote on whether to maintain at-large elections or transition to by-district elections for City Council — under the pretense of impending litigation,” the lawsuit said.
When reached Tuesday, Cypress City Attorney Fred Galante declined to comment on the pending litigation other than to maintain he stands by his previous defense of the vote — in which he argued no violation had been committed.
The Brown Act, Galante said last month, permits the City Council to meet in closed session to “receive advice from its legal counsel regarding pending litigation.”
“I’m at a loss for what part of the Brown Act’s exemption regarding threat of litigation is unclear,” Galante said.
However, the lawsuit contended: “[T]he mere possibility that a body’s action might be challenged in court is not a sufficient threat to justify a closed session.”
The issue began in September when attorney Kevin Shenkman sent Cypress a letter alleging the city’s at-large election system diluted the voice of minority residents. Shenkman, who specializes in the California Voting Rights Act (CVRA), has become notorious in California for undertaking such challenges.
Although Asian people comprise 35% of Cypress’ population — the same percentage as White residents — the “complete lack of Asian representation” on the council “is revealing,” Shenkman has said.
Most cities, school districts, and water districts have simply complied — albeit reluctantly — with demand letters alleging CVRA violations. The alternative is to risk an expensive lawsuit.
Even so, under the CVRA, those agencies have had to pay $30,000 to whoever instigated the demand. They also must foot the bill for a demographer to draw up district maps. Still, all of that can be a lot less costly than going to court only to wind up losing.
In 2015, Palmdale forked out $4.7 million to settle a lawsuit filed by Shenkman. Santa Monica has spent more than $8 million on still-active litigation that was also initiated by Shenkman.
Cypress took a different path from a dozen other Orange County cities faced with potential CVRA litigation. First, officials discussed its next steps in numerous closed sessions. Then, in a special meeting announced on Christmas Eve and held Dec. 27, the Council chose to hire a consultant for $40,000 to organize workshops and conduct a public opinion survey.
In January, the city hosted its first of three forums designed to educate the public about district voting. Council members did not offer their own viewpoints at the workshops.
Next, instead of holding a vote in a regular meeting, as other cities have done, the Council voted to reject Shenkman’s by-district election request.
Shenkman has not yet filed a promised CVRA lawsuit against Cypress. He said Tuesday a lawsuit, separate from the CalAware matter, is “in the works.”
Shaila Nathu, a lawyer for CalAware, said that the organization’s lawsuit “is distinct from the Shenkman issue.”
“Our interest is in government transparency,” Nathu said. “Whatever the decision was, it should have been made in public.”
In his April letter to CalAware, Galante cited the workshops as evidence of the city’s “robust public outreach.”
“Any argument that the City has not been overly transparent … is insincere,” Galante wrote.
But Nathu said that the forums did not take the place of a city council meeting, where officials could debate and record their own opinions.
“The public has the right to know what their city council members think,” she said. “Residents have only heard the outcome, without any context.
“Cities cannot use the Brown Act’s exemption for pending litigation to make a massive policy decision that affects the entire community,” Nathu added. “This stuff is not rocket science.”
