Open-meeting law expert says BC pushed limit

Dan Kulin

Thursday, Feb. 19, 2004 | 9:19 a.m.

A university professor and expert on the state's open-meeting law said the one-on-one meetings between City Council members and ousted City Manager John Sullard to discuss whether and how Sullard should leave the job were "clearly bending if not breaking" the state's open-meeting law.

Eric Herzik, a political science professor and interim dean of the College of Liberal Arts at the University of Nevada, Reno, said the private meetings are "problematic" because a majority of council members had individual meetings for a specific purpose. "Serial meetings" are specifically prohibited under a provision added to the open meetings law in 2001.

Boulder City's elected leaders, the city attorney and Sullard all said they believe the meetings did not break any laws.

Some council members said the discussions were part of their regular weekly meetings with Sullard, and added that at no time did they lobby their fellow council members on the matter.

City Attorney Dave Olsen said Sullard was allowed to meet with council members to discuss his job performance.

Around the end of December and early January, Sullard met with the mayor and and at least three council members to discuss his status. The discussions with each elected official varied, but they all touched on either their desire that Sullard leave the job, or what he could do if he was no longer city manager.

Subsequently, during a Jan. 13 council meeting, Sullard announced he would soon present the council with a "separation agreement" that would end his 6 1/2-year run as city manager. On Jan. 27 the council approved Sullard's separation agreement and he was put paid administrative leave for his last month on the job.

"This series of meetings that Boulder City held were clearly bending if not breaking AB225," Herzik said, referring to the Assembly bill that amended the open-meeting law to prohibit government officials from doing an end-run around the law with a series of meetings.

In Boulder City's case, "this was a serial meeting with a specific purpose behind it," Herzik said.

Herzik also said that he found this situation curious because the council could have legally met behind closed doors with Sullard to discuss whether they wanted him to resign as city manager. Personnel discussions are allowed to happen in closed meetings, but the public is required to receive notice of those meetings, like all open meetings.

Council members Andrea Anderson, Roger Tobler and Karla Burton said they think that to violate the open-meeting law, they would have had to secretly meet with other council members individually or collectively, to discuss Sullard's situation. But in this case, they met with the city manager, not each other.

Herzik said that while that argument is a "good defense."

"I still think that because this was designed for a specific end result, it goes right up to the edge of the law," he said.

During the meetings leading up to Sullard's decision to leave, Anderson said she spoke to Sullard about it being "his time to go."

Tobler said he and the rest of the council spoke to Sullard about their desire for his resignation. Tobler said he and Sullard also discussed what Sullard's severance package might be.

Burton said she too spoke with Sullard about his future with the city.

"John Sullard suggested he might stay in another job with the city. I told him that wasn't something that I supported," Burton said.

Councilman Mike Pacini said he couldn't recall speaking with Sullard about whether Pacini wanted him to go or a possible severance package. Pacini was Sullard's strongest supporter on the council.

Mayor Bob Ferraro, whose desire to have Sullard out of City Hall was well known, said Sullard told him that he was speaking with other council members about the situation.

But Ferraro said he and Sullard did not discuss whether the mayor wanted him gone, or what his severance should be.

"He knew exactly where I stood," Ferraro said.

Sullard's only comment on the matter was: "The city attorney felt there was nothing wrong. I didn't do anything wrong."

Olsen defended the meetings as legal and acceptable.

"He met with them and said, 'I'm hearing rumors,' He didn't say 'How will you vote?' " Olsen said. "I believe that John talked with each one of them long enough to see the handwriting on the wall and then he decided to do a settlement agreement."