San Luis Obispo City Councilman John Ashbaugh did not violate California's Ralph M. Brown Act, according to two legal experts familiar with the law that governs open meetings.
Ashbaugh’s alleged violation of the Brown Act occurred during an Oct. 21 council meeting when Ashbaugh accused Councilman Dan Carpenter of being unprepared and not asking any questions of legal staff during a prior closed session meeting on potential litigation concerning the Airport Land Use Commission.
That led the City Council on Monday to publicly chastise Ashbaugh — making it clear that he erred and had acted in disregard for his colleagues during his extended criticism of Carpenter on the dais in October.
But because Ashbaugh did not disclose anything that was said during the council’s closed session, he did not violate the law, said Terry Francke, general counsel for the open government advocacy group Californians Aware, which advocates for freedom of information.
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“The prohibition is against disclosing communications … that which is said,” Francke said. “The essence of the council member’s criticism was about things not said.”
Scott Merrill, attorney with the California Newspaper Publishers Association, agreed that no confidential information was shared.
“It seems like it was a political, silly move,” said Merrill, who was advised of Ashbaugh’s remarks by The Tribune.
City attorney Christine Dietrick previously said that she did not have the jurisdiction to make the legal determination whether the Brown Act was violated.
She did say that such a legal determination was not needed for the council to find Ashbaugh’s disclosure of a fellow council member's conduct in closed session was inappropriate.
San Luis Obispo Mayor Jan Marx said that Monday’s council discussion of Ashbaugh’s actions needed to happen regardless of whether or not the law was violated.
“It was a gesture toward transparency,” Marx said. “The alternative was to not do anything and sweep it under the rug, which would not have been appropriate.”
The council did not pursue a formal censure — which would have required an investigation by the city's personnel board.
“Normally you don’t have a vote of censure on an accusation of breaking the law,” Francke said.
Marx believes it is arguable that Ashbaugh didn’t disclose confidential information.
“It seems to me it was a gray area,” she said. “We couldn’t just ignore what happened. The public was shocked and very disturbed not just by what Ashbaugh said but because of the interaction between he and Carpenter and the way it seemed to affect public policy.”
Ashbaugh said Tuesday that his prior apology stands.
“The letter of the law is not as important as the feelings that come out of it,” said Ashbaugh, adding that he is ready to move on. “And even more important is what comes the next day.”