Following a pattern of lack of transparency, the Fresno City Council directed a letter be sent to the state Attorney General about the future of county elections, without disclosing a vote on the matter.
The letter, sent by City Attorney Andrew Janz to California Attorney General Rob Bonta, questioned a county proposal to return the election dates for sheriff and district attorney at the same time as the governor is elected.
A 2022 state law moved those elections to the same year as a presidential election, giving Sheriff John Zanoni and DA Lisa Smittcamp — both elected in 2022 — one-time six-year terms.
In August, the county supervisors approved letting voters decide when the election should be. Fresno County electors will decide March 5, 2024, whether the sheriff and DA should be elected next in 2026 or 2028.
Janz Direction Given in Secret
Multiple sources with direct knowledge tell GV Wire that the city council took action in closed session at a recent meeting. The minutes for the meeting Sept. 28 meeting only reflect that the council discussed “conference with legal counsel-anticipated litigation.” What the litigation may have been was not described.
The minutes said the item was discussed, but “there were no open session announcements regarding this item.”
There were also three items on the Oct. 5 closed session agenda labeled as “conference with legal counsel-anticipated litigation.” One was removed from the agenda; the other two were discussed without an open session announcement later.
One person said it was a “close vote,” without detailing the exact count. The state open meeting law, the Brown Act, mandates that actions such as votes taken in closed session be openly reported.
Janz said the city council did not violate the Brown Act in this case.
“There is no reporting out if there is ongoing or potential litigation. There are no transparency issues,” Janz said.
David Loy, legal director with the First Amendment Coalition, said the Brown Act allows for closed-session discussion to initiate a lawsuit. But, he says that is not the case for sending a letter to the attorney general.
“That’s not what they did here,” Loy said. “(The letter is) not an initiation of litigation by the city. That’s asking the attorney general to take action. So I don’t think that’s something that should be discussed in closed session. I think if they wanted to take a vote on whether to ask the attorney general to do something, they should talk about that in open session.”
There is an interpretation of the Brown Act that only a final action, such as a decision to file a lawsuit, requires a publicly disclosed vote. Prior decisions, such as negotiations — in this case, correspondence with the Attorney General, do not require full disclosure.
Again, Loy disagrees. He said sending a letter — a public record — is different than a confidential negotiation between parties.
“That specific action is not litigation. It’s not negotiation. It’s a request to a law enforcement agency to take legal action that, in my view, that specific action or direction should have been taken by vote in open session,” Loy said.
A Pattern of Secret Votes and Decisions
The city council has had a habit of giving direction behind closed doors and not disclosing how the item was decided or holding a public discussion. Examples include voting to pay privately-operated Granite Park’s utility bills and to support the legal defense of city councilman Nelson Esparza when he was charged with criminal attempted extortion in 2022. The case was eventually dropped.
When the city council voted in closed session to settle a wrongful termination lawsuit with former city clerk Yvonne Spence, it did not disclose the vote nor the settlement until GV Wire formally asked.
Loy said anyone in the public, including the district attorney, can send the council a cease and desist, or a cure and correct letter “insisting that the council either do the whole thing over in open session or simply stop violating the law in the future. And if the city council refuses, then they can be sued.”
Janz’s Letter to Bonta
In the Oct. 9 letter, Janz opens with “I have been directed by the Fresno City Council to respectfully request your office take action regarding a matter of public safety on behalf of the City of Fresno.”
Janz argues the 2022 state law moving sheriff and DA elections does not allow Fresno County to set its own election date — even if the voters decided to do so next March. He wrote, “if passed, would improperly cut short Fresno County District Attorney Lisa Smittcamp and Fresno County Sheriff John Zanoni’s terms by two years.”
“The City of Fresno urges your legal team to enjoin Fresno County from holding a referendum on this matter,” Janz wrote.
In a statement last week to GV Wire, DA Lisa Smittcamp said the state law was “potentially unconstitutional.”