Confusion reigns as Carmel City Council says it will not appeal judge's order in public records lawsuit.

There were moments of confusion and borderline chaos at the Carmel City Council Tuesday, Oct. 2, as the council announced it will not seek an appeal of a judge's order to release documents to the public.

That's what many residents were hoping council would decide, but instead of being happy about the news, left angry over what they thought was another attempt by the council to cloak information. 

It was an indication of just how frustrated residents have become, and how frayed nerves are in Carmel-by-the-Sea.

The meeting started out with a roomful of people nervously awaiting the council to come out of a closed-session meeting with the announcement on whether or not to file an appeal.

Waiting with Carmel residents in the front row was Voices of Monterey Bay columnist Royal Calkins, who filed suit against the city in July over the city's refusal to release records pertaining to the qualifications of City Attorney Glen Mozingo.

As the closed session lasted for more than an hour, residents in the room speculated on how the council would vote, noting that Mozingo last week talked about the possibility of an appeal. 

The council, Mozingo insisted, was between a rock and a hard place—either violate the Public Records Act, or violate the Brown Act, because the documents in question had been viewed in a closed session.

On Monday night, at a special meeting of the council, several residents urged councilmembers to not appeal, pointing to mounting legal bills and the probability that the city would ultimately lose.

And on Tuesday night, the council responded, through an announcement by Assistant City Attorney Jon Giffen, that the city will not appeal.

As soon as the city has a signed order from Monterey County Superior Court Judge Robert O'Farrell, the records will be released to the public within 15 days, Giffen said. (So far, O'Farrell has released his intended decision, which is likely to become a final, signed decision.)

Giffen added that Carmel's legal counsel had asked the Monterey County District Attorney's Office if the city would be prosecuted for violating the Brown Act, as Mozingo suggested, if they comply with O'Farrell's ruling. No, the DA instructed counsel; the judge's order was enough to protect them.

(O'Farrell specifically stated Calkins was only seeking the documents circulated in closed session, and not any comments or deliberations made during the closed session. He wasn't sure the Brown Act even applied in the case.)

Mayor Steve Dallas tried to move on to the next agenda item after Giffen's announcement about the appeal, but a ruckus immediately ensued. 

Calkins yelled out, asking how councilmembers voted on the question of the appeal. Two residents, Hugo Ferlito and City Council candidate Jeff Baron, joined in, saying the Brown Act specifies they have to reveal how councilmembers voted in closed session. Giffen disagreed, saying the vote was taken in closed session and could not be revealed. 

Later during public comment, Ferlito insisted again that the city had to reveal the vote, per the law, saying he read it off the the California League of Cities website. Dallas asked Ferlito to send the link to the city clerk. Several minutes later Dallas abruptly called for a five-minute break, which stretched into 25 minutes.

When the council came back, Dallas announced that Mozingo had something to say. Yes, Mozingo said, they did have to announce the vote.

"I will make a very simple statement," Dallas said. But what followed was far from simple. Dallas then posed a question: Did the councilmembers agree with Giffen's earlier statement?

Cue the confusion. Giffen had made two statements, one about the decision not to appeal and a second one about the council not having to reveal its vote. Was Dallas was referring to Giffen's second statement, and was now asking if the members agreed they shouldn't have to reveal their closed-session vote on whether to appeal? Or how they voted on the matter of the appeal?

Things stayed muddy. Four council members, with the exception of Bobby Richards, said they agreed with Giffen's statement. When Richards attempted to explain his thinking, Dallas told him it was just a yes or no. 

Thinking the council had just voted to keep the closed session vote secret, a couple of residents angrily demanded to know the vote. Explanations by Dallas and Councilmember Jan Reimers trying to clear up the confusion were of no help.

Residents also wanted to know if Dallas and two other councilmembers, Carolyn Hardy and Carrie Theis, had just met secretly during the break, which would be a Brown Act violation. Dallas moved on. Dallas denied after the meeting via a text that there had been a secret meeting among the three of them. 

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Richards declined after the meeting to state why he disagreed, because it was, after all, discussed in closed session.

In a written statement released by Dallas on Wednesday, titled "Report from 10/2/2018 Closed Session," the council voted 4-1 (with Richards dissenting) to not file an appeal.