Friday, October 31, 2008

News-Press and City in Spin-Off Over Settlement

A day after the News-Press was thumping its chest about its "victory" over the City on the issue of whether one of the municipality's more obscure committees committed a Brown Act violation at one of its meetings by discussing an item that wasn't on the agenda, the paper is in a snit because the City Attorney is downplaying the import of the case.

It started on Tuesday when the City issued a press release announcing that the lawsuit the paper's parent corporation had brought against it had been "settled" and that a term of the settlement involved the City admitting that a violation of the Brown Act "may" have occurred. The release explained that the City chose to settle because they believed the discussion in question could have been viewed by a judge as a "technical" violation of the Act.

In the front page article that appeared in the News-Press the next day the paper's attorney Barry Cappello, apparently responding to City Attorney Steve Wiley's characterization of the violation being a technical one, was quoted as saying: "There is no such thing as a technical violation of the Brown Act."

That may be so, but surely Cappello would agree that not all violations of the law are of the same gravity. After all, in criminal law there are felonies, misdemeanors and infractions. As Brown Act violations go, this was a minor infraction, at best.

But then again, only people who get paid in the neighborhood of $700 an hour to quibble about such things, as Cappello surely does, do quibble about such things.

It all started back on November 8 of last year when the three member Transportation and Circulation Commission briefly discussed, but didn't take any action on, a proposal to ban automobile traffic from De la Guerra Plaza.

That's been a sensitive issue for the News-Press whose historic headquarters building dominates the Plaza.

The News-Press, once it became aware that the discussion had taken place, wrote a letter to the City Attorney pointing out that the traffic plan did not appear on the meeting's agenda and asked that future discussions about the proposal be properly noticed.

The paper claims that they got no response to this letter.

News-Press owner Wendy McCaw, evidently taking a page out of the "I will not be ignored!" book (think Glenn Close in "Fatal Attraction") responded by suing the City and the individual members of the Commission asking for declaratory relief, a permanent injunction and attorney's fees.

And so the legal skirmishing began, only to be resolved by the settlement.

Word is that once the case was settled each side sat on the news for awhile waiting to see whether the other would be the first to announce it. The City finally made the first move with their press release and the News-Press counterpunched with the front-page article.

In that article Cappello was also quoted as vowing that the News-Press "will continue to fight for people's right to know and prevent secretive tactics by any government officials." I guess that's to the extent that anything that is broadcast on public access TV, as these meetings are, qualifies as "secretive."

Apparently Wednesday's front page article wasn't enough. Over on the opinion pages of the paper, Travis Armstrong used his op-ed page column to accuse the City's "spin machine" of trying to downplay the judgment and the City's characterization of it as a "settlement."

"The truth is, News-Press management refused to sign off on a "settlement" in this case," wrote Armstrong.

Actually, the truth is, the document the parties signed was a "stipulated judgment" meaning the parties agreed to and signed off on it's terms without the necessity of going to trial. Where I come from, that's called a settlement.

And just how much of what it originally asked for in its complaint, did the News-Press actually get?

A declaration that the a violation of the Brown Act had occurred? Yes. A permanent injunction enjoining the City and the Commission from discussing or acting on the Plaza redevelopment without adequate notice? No. Its attorney's fees incurred in bringing the suit? No.

Well, I guess one out of three isn't bad.

Armstrong also wrote that: the committee members "now are on record, according to this legal judgment, as violating the state's open meeting and good government regulations."

Well, yes and no. While the stipulated judgment says that "a Brown Act violation occurred" it also requires that "plaintiff shall file a dismissal with prejudice against the individual commissioners, David Pritchett, William C. Boyd and David Tabor." Sounds more like they were released as hostages to me.

And hostages they were. One of the demands the News-Press made in the course of discovery was for the commissioners to produce: "All email correspondence on any email account used by you containing any of the following words and/or phrases: (a) Wendy: (b) McCaw; (c) Travis; (d) Armstrong; (e) News-Press; (f) Ampersand; (g) Brown Act; (h) De la Guerra; (i) Plaza; (j) parking + plaza; (k) downtown + business + organization = plaza."

Was this a lawsuit or a scavenger hunt?

Whatever it was, when the City finally said in effect "okay, we'll admit the Brown Act violation," the News-Press lost whatever little leverage it had over the City in this suit.

After all, there are no monetary penalties for violating the Act. The main penalty is the invalidation of any action that was taken at the "illegal" meeting. Problem was, the commissioners only had a brief discussion, and no action resulted from that discussion.

I can only assume that each side agreed to bear their own attorney's fees because the judge in all likelihood indicated that he wasn't going to award them.

So, when it was all said and done, the News-Press didn't have a whole lot to show for filing this lawsuit.

The outcome shouldn't have been too tough to figure out before the lawsuit was filed. But I've seen little to suggest, at least when it comes to litigating, that Wendy and her lawyers ever sit down and think things through.

In other words it's sue first, ask questions later and spin the hell out of whatever meager results you get.