1 Petitioner/Plaintiff Nanette Dillard (“Petitioner” or “Dillard”) seeks a writ of mandate,

2 injunctive and declaratory relief under California Code of Civil Procedure Sections 1085 and
3 1060 and Government Code Sections 54960 and 6258, regarding actions taken by
4 Respondent/Defendant Alameda County Associated Community Action Program Governing
5 Board (“Respondent” or “Board”). In this Verified Petition, Petitioner alleges as follows:
6
7 THE PARTIES
8
9 1. Petitioner/Plaintiff NANETTE DILLARD (“Petitioner” or “Dillard”) is an
10 individual resident and taxpayer of the City of El Cerrito.
11
12 2. Respondent/Defendant ALAMEDA COUNTY ASSOCIATED COMMUNITY
13 ACTION PROGRAM GOVERNING BOARD (“Respondent” or “Board” or “GB”) is
14 comprised of one elected public official from the Alameda County Board of Supervisors and
15 one elected official from each of the 12 cities within its jurisdiction. The Alameda County
16 Associated Community Action Program (“ACAP”) is a joint powers agency established under
17 Joint Exercise of Powers Act, Government Code § 6500, et seq. A true and correct copy of the
18 Joint Powers Agreement is attached hereto as “Exhibit A.”
19
20 3. The Alameda County Associated Community Action Program (ACAP)
21 administers Community Services Block Grant (CSBG) funds for all jurisdictions in the county
22 except Berkeley and Oakland. These funds are used to maintain community action agencies
23 involved in eliminating the causes and effects of poverty through employment and economic
24 development programs.
25
26 4. ACAP’s headquarters are located at the Eden Area Multiservice Center, 3rd
27 Floor, 24100 Amador Street, Hayward, CA 94544.
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 5. Petitioner Dillard has been employed by ACAP since 2002, and has acted as its
2 executive director since 2004.
3
4 MATERIAL FACTS SUPPORTING THE CAUSE OF ACTION
FOR VIOLATIONS OF THE RALPH M. BROWN ACT
5
6 6. Section 6.1 of the Bylaws of the ACAP Governing Board, a true and correct
7 copy of which is attached hereto as “Exhibit B,” states:
8 All meetings of the GB shall be public in accordance with the provisions
9 of the Ralph M. Brown Act (California Government Code § 54950 et
seq.). The Board shall meet not less frequently than every ninety (90)
10 days. Written notice of meetings shall be sent to all members of the GB at
least ten (10) days in advance of a meeting. Committee reports, reports
11 from the Director, and other agenda material shall be included in the
12 mailing when available.

13 Advance publicity shall be provided to reasonably insure that the public

will be notified of all GB meetings; such publicity may include notice in
14 various newspapers in the ACAP service area and high traffic Internet
15 sites.

16 The agenda of regular meetings shall include minutes of the previous

regular meeting, any special meetings, and committee meetings held since
17 the last general meeting. Opportunity for discussion of all material mailed
18 in advance shall be included in the agenda. Each meeting shall provide
opportunity for new business to be introduced from the floor and from the
19 public whether or not it has been included in the written agenda provided
in advance of the meeting.
20
21
7. On February 2, 2011, the Board convened a meeting. A true and correct copy
22
of the agenda of the February 2, 2011 meeting is attached hereto as “Exhibit C.”
23
24
8. During the February 2, 2011 meeting, the President of the Board of Supervisors
25
of Alameda County Nate Miley (“Miley”), who sits on the Governing Board of ACAP, stated
26
that he had received a letter from staff containing complaints and charges against Petitioner
27
Dillard prior to the meeting regarding her performance and alleged mismanagement of ACAP.
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 He further stated that he had forwarded the letter to all of the Board members prior to the
2 meeting.
3
4 9. In response, and acting on these complaints and charges, Boardmember Miley
5 moved to hold a closed session at the end of that night’s meeting to address the charges and
6 complaints against Petitioner Dillard and whether they justified the initiation of disciplinary
7 action. Boardmember Zermeno seconded the motion.
8
9 10. The agenda for the February 2, 2011 meeting (Exhibit C) contained no item(s)
10 referencing any discussion or closed session regarding Petitioner Dillard’s performance.
11
12 11. During the public comment period of the February 2, 2011 meeting, some
13 members of the public, consisting of former and current ACAP employees, made complaints
14 and charges against Petitioner Dillard, ranging from denying unemployment benefits, to failure
15 to provide sufficient office supplies, to not maintaining an ergonomically correct workspace, to
16 financial mismanagement. Boardmember Miley responded that those issues would be
17 addressed in the closed session which had been added to that night’s meeting.
18
19 12. During the closed session, in response to the complaints and charges against
20 Petitioner Dillard, the Board chose to place Petitioner Dillard on administrative leave. The
21 Board announced this decision when open session resumed.
22
23 13. Petitioner Dillard was not given notice prior to the meeting or the opportunity to
24 respond to the complaints and charges both alleged in the letter received by Boardmember
25 Miley or made during the public comment period at the February 2nd meeting before the
26 Board’s discussion of these complaints and charges in closed session and its decision to place
27 Petitioner Dillard on administrative leave.
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 14. The minutes of the February 2, 2011 Board Meeting states under Section I,
2 Subsection B, entitled “Additions to the Agenda” that “Supervisor Nate Miley motioned to
3 approve to add a closed session following tonight’s regular meeting. Supervisor Miley was in
4 receipt of a letter from ACAP staff that needed to be addressed. Councilmember Zermeno
5 seconded.” Further, under Section VII, entitled “Report Out of Closed Session” the minutes
6 state that “The Board took action on personnel issues. Supervisor Miley reported Nanette
7 Dillard was placed on administrative leave effective immediately and Lenita Ellis would be
8 Interim Executive Director effectively immediately.” Attached hereto as “Exhibit D” is a true
9 and correct copy of the provisional minutes of the February 2, 2011 Board Meeting.
10
11 15. On February 10, 2011, the board held a special meeting. A true and correct
12 copy of the agenda for that meeting is attached hereto as “Exhibit E.”
13
14 16. On February 18, 2011, the board held what it described as an “Emergency
15 Session.” A true and correct copy of the agenda for that meeting is attached hereto as “Exhibit
16 F.”
17
18 17. On or about February 18, 2011, Petitioner Dillard received a letter from Diana
19 Souza which stated that the Board had terminated her employment. Attached hereto as
20 “Exhibit G” is a true and correct copy of that letter.
21
22 18. On February 23, 2011, Petitioner sent an email to Meredith Walker (“Walker”)
23 requesting that she be placed on the list to receive all board meeting notifications and packets.
24 A true and correct copy of that email is attached hereto as “Exhibit H.”
25
26 19. On February 23, 2011, the board held a special meeting. A true and correct
27 copy of that agenda is attached hereto as “Exhibit I.”
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 20. Since the date of her request, ACAP staff has failed to comply with Ms.
2 Dillard’s request and has not provided any advance notice of any Board meetings held between
3 February 23, 2011 to the present, even though Petitioner Dillard is informed and believes and
4 on that basis alleges, that there have been multiple meetings since February 23, 2011.
5
6 21. On March 9, 2011, the board held a special meeting. A true and correct copy of
7 that agenda is attached hereto as “Exhibit J.” A true and correct copy of the provisional
8 minutes for that meeting are attached hereto as “Exhibit K.
9
10 22. On March 11, 2011, on Petitioner’s behalf, Stuart Goldware, an attorney with
11 the firm Frankel & Goldware, sent a letter to Diana Souza, Chairperson of the Board. A true
12 and correct copy of this letter is attached hereto as “Exhibit L.” As noted in the carbon copy
13 list, the entire Board was also provided with a copy of the letter. The letter alleges numerous
14 violations of the Ralph M. Brown Act, Government Code section 54950, et seq. Also enclosed
15 with the letter was a “Demand for Cure or Correction” requiring:
16 That you cure or correct the following actions taken in closed session on
or about February 2, 2011, and on or about February 16, 2011:
17
18 1. The placing of Nanette Dillard on administrative leave
from her position as Executive Director of ACAP on or
19 about February 2, 2011; and
20 2. The termination of Nanette Dillard’s employment as
21 Executive Director of ACAP on or about February 16,
2011.
22
These demands are made pursuant to California Government Code §
23 54960.1 and are based on the fact that the adverse employment decisions taken
24 with respect to Nanette Dillard were made in violation of California Government
Code § 54954.2. Specifically, with respect to the February 2, 2011 board
25 meeting, no description of any such proposed action was posted on an agenda for
that meeting at least 72 hours before the meeting took place. Furthermore, on
26 information and belief, subsequent adverse employment action taken against
27 Nanette Dillard was not properly posed on meeting agendas.

28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 23. On March 21, 2011, Mr. Goldware received a letter from R. Zachary
2 Wasserman, an attorney from Wendel, Rosen, Black & Dean LLP. The letter was dated March
3 17, 2011, and stated that it was in response “to your March 11, 2011 letter” and that the firm
4 “represents the ACAP Governing Board and Ms. Souza.” A true and correct copy of this letter
5 is attached hereto as “Exhibit J.” The letter makes the following statements:
6 • “The actions taken by the ACAP Board and Ad Hoc Committee with respect to
Ms. Dillard’s employment are in full accordance with the requirements laid out
7 in the Brown Act and ACAP’s own bylaws.” (Exhibit J, page 1).
8
• “At the open Board meeting a series of complaints were voiced about Ms.
9 Dillard’s performance and mismanagement of ACAP. During the closed
session of that meeting, the Board’s considered how to address the charges and
10
complaints against Ms. Dillard and whether they justified the initation of
11 disciplinary action. The Board chose to place Ms. Dillard on administrative
leave and so stated thereafter when the open session resumed. The Board
12 created the Ad Hoc Committee (“Committee”) and delegated its authority to
address Ms. Dillard’s employment at ACAP. Immediately following this
13 action, Ms. Dillard was accompanied to her office and asked to take anything
14 personal and to surrender her keys and passcard to the building.” (Exhibit J,
page 1).
15
• “The notice requirement articulated in subsection 2 is a “condition to holding a
16
closed session on specific complaints or charges brought against the employee”
17 Ms. Dillard was terminated by the Committee, not based on any person’s
specific complaints or charges; therefore, 24-hour prior notice for Ms. Dillard to
18 have the option of having the complaints and charges heard in open session was
not required by Section 54957(b).” (Exhibit J, page 2).
19
20 • “the decision to terminate was initiated and approved by the Committee on
February 10th. At that Committee meeting, a quorum of Committee members
21 was present. (Exhibit J, page 3).
22
• Also note that the decision to place Ms. Dillard on administrative leave on
23 February 2nd was enacted by a quorum of the Board.” (Exhibit J, page 3).
24
24. Neither the agenda (Exhibit C) nor the minutes (Exhibit D) for the February 2,
25
2011, meeting contained any reference of any discussion regarding the creation of the “Ad Hoc
26
Committee.”
27
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 25. On March 23, 2011, the board held a special meeting. A true and correct copy
2 of that agenda is attached hereto as “Exhibit N”
3
MATERIAL FACTS SUPPORTING THE CAUSE OF ACTION
4 FOR VIOLATIONS OF THE CALIFORNIA PUBLIC RECORDS ACT
5
6 26. On March 4, 2011, Petitioner sent a Public Records Act Request by email to
7 Walker asking for a number of documents, one of which was “A copy of the complete ACAP
8 Organizational Assessment as submitted to Governing Board members Supervisors Nate Miley
9 and (then) ACAP Chair Robert Lieber.” A true and correct copy of that email is attached
10 hereto as “Exhibit O.”
11
12 27. On March 15, 2011, Petitioner received a response from Sam Tuttelman,
13 Interim ACAP Executive Director. A true and correct copy is attached hereto as “Exhibit P.”
14 The response, while agreeing to provide certain documents “assuming they can be located”
15 refused to provide the ACAP Organizational Assessment stating, “upon advice of counsel you
16 are not entitled to item #1, the ACAP Organizational Assessment as submitted to Governing
17 Board members Supervisor Nate Miley and (then) ACAP Chair Robert Lieber.”
18
19 29. On April 21, 2011, Petitioner went to ACAP to request to view public records.
20 She provided Meredith Walker with a verbal as well as a hand-delivered, written request. The
21 letter requesting to view public records is attached hereto as “Exhibit Q.” Petitioner was
22 allowed to view, and then given copies, of some of the documents she requested.
23
24 29. One of the documents that Petitioner requested to view was, “The letter which
25 was described by Associated Community Action Program Governing Board Member Nate
26 Miley at the February 2, 2011 meeting, and was distributed to the Board by email prior to the
27 meeting.” (Exhibit Q, page 1.)
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 30. On April 21, 2011, the ACAP interim executive director denied Petitioner’s
2 request for the letter described above, stating, “Your request for "the letter which was described
3 by Associated Community Action Program Governing Board Member Nate Miley at the
4 February 2, 2011 meeting, and was distributed to the Board by email prior to the meeting" is
5 too vague. Please be more specific with your request.” The letter also states that, “Also please
6 note the minutes from Governing Board meetings dated February 10, 2011, February 18, 2011
7 and March 23, 2011 are not yet public records.” A true and correct copy of that letter is
8 attached hereto as “Exhibit R.”
9
10 GENERAL ALLEGATIONS RELATED TO ALL CAUSES OF ACTION
11
31. Petitioner hereby realleges and incorporates herein by this reference Paragraphs 1
12
through 30 of this Petition as though set forth herein in full.
13
14
32. The People of California have elevated the right to open government to one
15
protected by their State Constitution. The California Constitution, Article 1, Section 3,
16
Paragraphs (a) - (b) state:
17
18 The people have the right to instruct their representatives, petition government for
19 redress of grievances, and assemble freely to consult for the common good.
The people have the right of access to information concerning the conduct of the
20 people's business, and, therefore, the meetings of public bodies and the writings of
public officials and agencies shall be open to public scrutiny.
21 A statute, court rule, or other authority, including those in effect on the
22 effective date of this subdivision, shall be broadly construed if it furthers the
people's right of access, and narrowly construed if it limits the right of access. 4
23
24 33. Code of Civil Procedure § 1060 provides:
25 “Any person interested … may, in cases of actual controversy relating to the
legal rights and duties of the respective parties, bring an original action or cross-
26 complaint in the superior court for a declaration of his or her rights and duties in
27
28 4
All emphasis added, unless otherwise noted.

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 the premises … either alone or with other relief … The declaration may be had
before there has been any breach of the obligation in respect to which said
2 declaration is sought.”
3
4 34. There presently exists, between the Petitioner and the Board, an actual
5 controversy relating to: (1) the legal rights of Petitioner and other members of the public under
6 the Brown Act and the California Public Records Act; and (2) the ministerial duties imposed
7 upon the Board by the Brown Act and the California Public Records Act.
8
9 35. Petitioner requests a judicial determination that Respondent has violated, and
10 continues to violate, the Brown Act and California Public Records.
11
12 36. This determination is necessary and proper because Respondent refuses to
13 conform to the requirements of the Brown Act and refuses to provide public records as
14 requirements under the California Public Records Act.
15
37. Respondent has a ministerial duty to perform according to the laws of the State of
16
California, including the Brown Act and the California Public Records Act.
17
18
38. Respondent has failed and refused to perform its ministerial duties as required by
19
the Brown Act and the California Public Records Act.
20
21
39. Petitioner has a clear, present, and legal right to Respondent's performance of its
22
ministerial duties, as required by the Brown Act and the California Public Records Act.
23
24
40. Respondent has a present legal duty and present ability to perform its ministerial
25
duties, as required by the Brown Act and the California Public Records Act.
26
27
41. Petitioner has an interest in having the laws executed and public duties enforced
28
and, therefore, has a beneficial interest in the outcome of the proceedings.
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VERIFIED PETITION FOR WRIT OF MANDATE
 1 42. Petitioner is requesting no greater relief than would be available to any member
2 of the public.
3
4 43. Petitioner has exhausted her administrative remedies. The only plain, speedy,
5 and adequate remedy left to Petitioner is the relief provided by Government Code §§ 54960 and
6 6258.
7
FIRST CAUSE OF ACTION
8
FOR VIOLATIONS OF THE RALPH M. BROWN ACT
9
(RELIEF PURSUANT TO SECTION 54960, 54960.1; CCP SECTIONS 1060, 1085)
10
11
44. Petitioner hereby realleges and incorporates herein by this reference Paragraphs 1
12
thorough 30 and 32 through 43 of this Petition as though set forth herein in full.
13
14
45. The Legislature has made clear the importance of local agencies and their
15
legislative bodies performing as required by the Brown Act. “The Legislature hereby finds and
16
declares that complete, faithful, and uninterrupted compliance with the Ralph M. Brown Act…is
17
a matter of overriding public importance.” (§ 54954.4(c).)
18
19
46. The Brown Act defines the term “meeting” as:
20
As used in this chapter, "meeting" means any congregation of a majority of the
21 members of a legislative body at the same time and location … to hear, discuss,
deliberate, or take action on any item that is within the subject matter jurisdiction
22 of the legislative body.” (§ 54952.2(a).) 5
23
24 47. Government Code section 54952.2 (b)(1) prohibits discussions of matters within

25 the Board’s jurisdiction outside of a meeting complying with the Brown Act’s requirements.

26
27
28 5
Section 54952.2 contains exceptions not applicable here.

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 A majority of the members of a legislative body shall not, outside a meeting
authorized by this chapter, use a series of communications of any kind, directly
2 or through intermediaries, to discuss, deliberate, or take action on any item of
3 business that is within the subject matter jurisdiction of the legislative body

4
48. Government Code section 54952.6 defines the term “action taken.”
5
As used in this chapter, "action taken" means a collective decision made by a
6 majority of the members of a legislative body, a collective commitment or
promise by a majority of the members of a legislative body to make a positive or
7 a negative decision, or an actual vote by a majority of the members of a
8 legislative body when sitting as a body or entity, upon a motion, proposal,
resolution, order or ordinance.
9
10 49. Government Code section 54953(c) prohibits actions by secret ballot.
11 No legislative body shall take action by secret ballot, whether preliminary or
12 final.

13
50. Petitioner is informed and believes, and on that basis alleges, Respondent
14
violated Government Code section 54953(c) by failing to release the vote on numerous actions
15
taken, including, but not limited to:
16
• an action taken at the February 2, 2011 Board meeting to place Petitioner on
17
administrative leave
18
• an action taken at the February 2, 2011, Board meeting to appoint an interim
19
director
20
• an action taken at the February 10, 2011, Board meeting to terminate
21
Petitioner’s employment with ACAP
22
• an action taken at the February 10, 2011, Board meeting to appoint a new
23
interim executive director
24
25
51. Government Code section 54954.1 expressly authorizes a person to make a
26
standing request for notices of public meetings.
27
Any person may request that a copy of the agenda, or a copy of all the
28 documents constituting the agenda packet, of any meeting of a legislative body

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 be mailed to that person…. Upon receipt of the written request, the legislative
body or its designee shall cause the requested materials to be mailed at the time
2 the agenda is posted…or upon distribution to all, or a majority of all, of the
3 members of a legislative body, whichever occurs first.

4
52. Petitioner is informed and believes, and on that basis alleges, Respondent
5
violated Government Code section 54954.1 by failing to provide Petitioner with agendas and
6
documents relating to upcoming meetings after requested to do so by Petitioner.
7
8 53. Government Code section 54954.2(a) discusses the notice requirement for
9 regular meetings, stating:
10 (1) At least 72 hours before a regular meeting, the legislative body of the
local agency, or its designee, shall post an agenda containing a brief general
11 description of each item of business to be transacted or discussed at the meeting,
12 including items to be discussed in closed session. A brief general description of
an item generally need not exceed 20 words. The agenda shall specify the time
13 and location of the regular meeting and shall be posted in a location that is freely
accessible to members of the public….
14
15 (2) No action or discussion shall be undertaken on any item not appearing on
16 the posted agenda…

17
54. Petitioner is informed and believes, and on that basis alleges, Respondent
18
violated Government Code section 54954.2(a) by discussing and taking action on items of
19
business at the Board’s February 2, 2011, meeting that did not appear on the Agenda, including
20
a closed session to discuss “personnel” and possibly the creation of an “ad hoc committee”.
21
22
55. Government Code section 54954.2(b) is an exception to the general rule, as
23
stated above, and sets forth the requirements for taking action on an item not appearing on the
24
posted agenda.
25
Notwithstanding subdivision (a), the legislative body may take action on items
26 of business not appearing on the posted agenda under any of the conditions
stated below. Prior to discussing any item pursuant to this subdivision, the
27 legislative body shall publicly identify the item….
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 (2) Upon a determination by a two-thirds vote of the members of the legislative
body present at the meeting, or, if less than two-thirds of the members are
2 present, a unanimous vote of those members present, that there is a need to take
3 immediate action and that the need for action came to the attention of the local
agency subsequent to the agenda being posted as specified in subdivision (a).
4
5 56. Petitioner is informed and believes, and on that basis alleges, Respondent
6 violated Government Code section 54954.2(b) by adding an item of business for discussion
7 and action to the Board’s February 2, 2011, meeting without meeting the requirements set forth
8 in Government Code section 54954.2(b), namely Respondent did not make a finding that there
9 was immediate action was necessary and that the need for action came to the attention of the
10 Board subsequent to the agenda’s posting. Further, Petitioner is informed and believes, and on
11 that basis alleges, that the facts as presented to the Board at their February 2, 2011, meeting
12 could not have met the requirements of this section as immediate action was not necessary and
13 the matter was known to members of the Board more than 24 hours in advance.
14
57. Government Code section 54954.3(a) requires that members of the public have
15
the opportunity to address the legislative body before or during consideration of an item of
16
business:
17
18 Every agenda for regular meetings shall provide an opportunity for members of
19 the public to directly address the legislative body on any item of interest to the
public, before or during the legislative body's consideration of the item, that is
20 within the subject matter jurisdiction of the legislative body…. Every notice for
a special meeting shall provide an opportunity for members of the public to
21 directly address the legislative body concerning any item that has been described
22 in the notice for the meeting before or during consideration of that item.

23
58. Petitioner is informed and believes, and on that basis alleges, Respondent
24
violated Government Code section 54954.3(a) by discussing and taking action on items of
25
business at the Board’s meetings on February 2, 2011, February 10, 2011, February 23, 2011,
26
March 9, 2011, and March 23, 2011, without providing notice on the agenda for public
27
comment periods before or during the consideration of items of business.
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 59. Government Code section 54954.6 discusses the requirements for a special
2 meeting and states:
3 A special meeting may be called at any time by the presiding officer of the
legislative body of a local agency, or by a majority of the members of the
4 legislative body, by delivering written notice to each member of the legislative
5 body and to each local newspaper of general circulation and radio or television
station requesting notice in writing. The notice shall be delivered personally or
6 by any other means and shall be received at least 24 hours before the time of the
meeting as specified in the notice. The call and notice shall specify the time and
7 place of the special meeting and the business to be transacted or discussed. No
8 other business shall be considered at these meetings by the legislative body….
The call and notice shall be posted at least 24 hours prior to the special meeting
9 in a location that is freely accessible to members of the public.
10
60. Petitioner is informed and believes, and on that basis alleges, Respondent
11
violated Government Code section 54954.6 by discussing and taking action on items of
12
business that were not listed on the Agenda for Board meetings held on February 10, 2011,
13
February 23, 2011, March 9, 2011, and March 23, 2011.
14
15 61. Government Code section 54956.5 defines “emergency situation” as either:
16 (1) An emergency, which shall be defined as a work stoppage, crippling
17 activity, or other activity that severely impairs public health, safety, or both, as
determined by a majority of the members of the legislative body; or,
18
(2) A dire emergency, which shall be defined as a crippling disaster, mass
19 destruction, terrorist act, or threatened terrorist activity that poses peril so
20 immediate and significant that requiring a legislative body to provide one-hour
notice before holding an emergency meeting under this section may endanger
21 the public health, safety, or both, as determined by a majority of the members of
the legislative body.
22 …¶…
23 …in the case of an emergency situation involving matters upon which prompt
action is necessary due to the disruption or threatened disruption of public
24 facilities, a legislative body may hold an emergency meeting…
25
26 62. Petitioner is informed and believes, and on that basis alleges, Respondent

27 violated Government Code section 54954.5 by holding an “emergency meeting” on February

28 18, 2011 where the Board was not authorized to do so.

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 63. Government Code section 54956.9 addresses closed sessions relating to
2 litigation:
3 For purposes of this section, litigation shall be considered pending when…
4 (b) (1) A point has been reached where, in the opinion of the legislative body of
5 the local agency on the advice of its legal counsel, based on existing facts
and circumstances, there is a significant exposure to litigation against the
6 local agency.
7 …¶…
8
(3) For purposes of paragraphs (1) and (2), "existing facts and
9 circumstances" shall consist only of one of the following:
10 (A) Facts and circumstances that might result in litigation against the
11 local agency but which the local agency believes are not yet known to a
potential plaintiff or plaintiffs, which facts and circumstances need not be
12 disclosed.
13 (B) Facts and circumstances, including, but not limited to, an accident,
14 disaster, incident, or transactional occurrence that might result in
litigation against the agency and that are known to a potential plaintiff or
15 plaintiffs, which facts or circumstances shall be publicly stated on the
agenda or announced.
16
17 (C) The receipt of a claim pursuant to the Tort Claims Act or some other
written communication from a potential plaintiff threatening litigation,
18 which claim or communication shall be available for public inspection
pursuant to Section 54957.5.
19
20 (D) A statement made by a person in an open and public meeting
threatening litigation on a specific matter within the responsibility of the
21 legislative body.
22 (E) A statement threatening litigation made by a person outside an open
23 and public meeting on a specific matter within the responsibility of the
legislative body so long as the official or employee of the local agency
24 receiving knowledge of the threat makes a contemporaneous or other
record of the statement prior to the meeting, which record shall be
25 available for public inspection pursuant to Section 54957.5. The records
26 so created need not identify the alleged victim of unlawful or tortuous
sexual conduct or anyone making the threat on their behalf, or identify a
27 public employee who is the alleged perpetrator of any unlawful or
tortuous conduct upon which a threat of litigation is based, unless the
28 identity of the person has been publicly disclosed.

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 …¶…
Prior to holding a closed session pursuant to this section, the legislative
2 body of the local agency shall state on the agenda or publicly announce
3 the subdivision of this section that authorizes the closed session. …

4
5 64. Petitioner is informed and believes, and on that basis alleges, Respondent
6 violated Government Code section 54956.9 by holding “potential litigation” or “significant
7 exposure to litigation” closed sessions at Board meetings on February 10, 2011, March 9,
8 2011, and March 23, 2011, but never announcing the facts and circumstances of said “potential
9 litigation.” Further, Petitioner is informed and believes, and on that basis alleges, Respondent
10 violated Government Code section 54956.9 by:
11 • taking actions during the “significant exposure to litigation” closed session held
12 on February 10, 2011, which did not relate to litigation;
13 • holding a closed session on March 9, 2011, “to discuss potential litigation”
14 where the existing facts and circumstances did not meet the requirements set
15 forth in Government Code section 54956.9 and by failing to state on the Agenda
16 or publicly announce the subsection that authorized the closed session.
17 • holding a closed session on March 23, 2011, “to discuss potential litigation” but
18 failing to state on the Agenda or publicly announce the section or subsection
19 that authorized the closed session.
20
65. Government Code section 54957(b) provides the authorization and requirements
21
for closed sessions relating to personnel matters.
22
23 (1) Subject to paragraph (2), nothing contained in this chapter shall be construed
24 to prevent the legislative body of a local agency from holding closed sessions
during a regular or special meeting to consider the appointment, employment,
25 evaluation of performance, discipline, or dismissal of a public employee or to
hear complaints or charges brought against the employee by another person or
26 employee unless the employee requests a public session.
27
(2) As a condition to holding a closed session on specific complaints or charges
28 brought against an employee by another person or employee, the employee shall

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 be given written notice of his or her right to have the complaints or charges
heard in an open session rather than a closed session, which notice shall be
2 delivered to the employee personally or by mail at least 24 hours before the time
3 for holding the session. If notice is not given, any disciplinary or other action
taken by the legislative body against the employee based on the specific
4 complaints or charges in the closed session shall be null and void.
5
66. Petitioner is informed and believes, and on that basis alleges, Respondent
6
violated Government Code section 54957(b) by:
7
• holding a closed sessions to discuss “specific complaints and charges” without
8
complying with the 24 hour notice requirement as set forth in 54957(b)(2);
9
• holding closed sessions to discuss “personnel issues” on February 23, 2011,
10
March 9, 2011, and March 23, 2011, without providing notice of the specific
11
person or persons to be discussed.
12
13 67. Government Code section 54957.1 states that sets forth the requirements for
14 reporting actions taken in closed session as follows:
15 (a) The legislative body of any local agency shall publicly report any action
16 taken in closed session and the vote or abstention on that action of every
member present, as follows:
17
(5) Action taken to appoint, employ, dismiss, accept the resignation of, or
18 otherwise affect the employment status of a public employee in closed session
pursuant to Section 54957 shall be reported at the public meeting during which
19 the closed session is held. Any report required by this paragraph shall identify
20 the title of the position. The general requirement of this paragraph
notwithstanding, the report of a dismissal or of the nonrenewal of an
21 employment contract shall be deferred until the first public meeting following
the exhaustion of administrative remedies, if any.
22
23
68. Government Code section 54957.7 sets forth other requirements of the Board
24
when holding a closed session.
25
(a) Prior to holding any closed session, the legislative body of the local agency
26 shall disclose, in an open meeting, the item or items to be discussed in the closed
27 session. The disclosure may take the form of a reference to the item or items as
they are listed by number or letter on the agenda. In the closed session, the
28 legislative body may consider only those matters covered in its statement.

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 Nothing in this section shall require or authorize a disclosure of information
prohibited by state or federal law.
2
(b) After any closed session, the legislative body shall reconvene into open
3 session prior to adjournment and shall make any disclosures required by Section
4 54957.1 of action taken in the closed session.

5
69. Petitioner is informed and believes, and on that basis alleges, Respondent
6
violated Government Code section 54957.1 and 54957.7 by firing Petitioner during a closed
7
session at its meeting on February 10, 2011 but failing to report the action at the meeting
8
during which the closed session was held and by discussing matters during a closed session
9
which were not disclosed prior to the closed session.
10
11 70. Petitioner has sent a Demand to the Board (Exhibit L) within the timeframe set
12 forth in Government Code § 54960.1(b).
13
14 71. Government Code § 54960.1(c)(2) requires that "[w]ithin 30 days of receipt of
15 the demand, the legislative body shall cure or correct the challenged action and inform the
16 demanding party in writing of its actions to cure or correct, or inform the demanding party in
17 writing of its decision not to cure or correct the challenged action." The Board did not respond
18 to Petitioner, nor did it rescind the actions taken as described within the Demand (Exhibit M),
19 as required under §54960.1.
20
21 72. Although an attorney for the Board responded to Petitioner (Exhibit M) denying
22 there had been any Brown Act violations by the Board, the response did not satisfy the
23 requirements of Government Code § 54960.1(c)(2). First, the letter did not “inform the
24 demanding party” or the legislative body’s “decision not to cure or correct the challenged
25 action.” Further, it was not a response from the legislative body because, absent an illegal
26 action taken outside a meeting, there were no Board meetings held between the Board’s receipt
27 of Petitioner’s Demand (Exhibit L) and the Attorney's response (Exhibit M) to Petitioner’s
28 Demand at which the Board could have taken action to respond.

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 73. Government Code § 54960.1(c)(3) states that "[i]f the legislative body takes no
2 action within the 30-day period, the inaction shall be deemed a decision not to cure or correct
3 the challenged action, and the 15-day period to commence the action described in subdivision
4 (a) shall commence to run the day after the 30-day period to cure or correct expires.
5
6 74. Petitioner has filed this action within 15-day period as required by Government
7 Code § 54960.1.
8
9 75. Petitioner alleges that the Board’s numerous violations of the Brown Act, as set
10 forth above, deprived Petitioner and members of the public of proper notice and of their right to
11 address the Board on the business to be discussed.
12
13 76. If Respondent continues to violate the Brown Act, as it has repeatedly done in the
14 past, Petitioner and other interested persons, citizens, and taxpayers will be irreparably harmed
15 because they will be denied notice of and the opportunity to participate in the Board’s meetings,
16 a right which is guaranteed by law.
17
18 77. Section 54960(a) provides that any interested person, such as the Petitioner, “may
19 commence an action by mandamus, injunction or declaratory relief for the purpose of stopping
20 or preventing violations or threatened violations of this chapter by members of the legislative
21 body of a local agency or to determine the applicability of this chapter to actions or threatened
22 future action of the legislative body….”
23
24 78. Petitioner is informed and believes, and on that basis alleges that because the
25 Board has failed to acknowledge its violations of the Brown Act, Respondent is likely to
26 continue to violate the Brown Act in the future.
27
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 79. Because Counsel for the Board has stated that the Board’s prior actions did not
2 constitute violations of the Brown Act, it is likely the Board will continue to violate the Brown
3 Act in the future.
4
5 80. The Board has ignored the public’s rights to be informed and involved and
6 should therefore be ordered by this court to tape record future closed sessions.
7
SECOND CAUSE OF ACTION FOR
8
VIOLATIONS OF THE CALIFORNIA PUBLIC RECORDS ACT
9
(RELIEF PURSUANT TO SECTION 6258, 6259; CCP SECTIONS 1060, 1085)
10
11 81. Petitioner hereby realleges and incorporates herein by this reference Paragraphs 1

12 thorough 30 and 32 through 43 and 45 through 80 of this Petition as though set forth herein in

13 full.

14
82. Government Code § 6250 states that:
15
In enacting this chapter, the Legislature, mindful of the right of individuals to
16 privacy, finds and declares that access to information concerning the conduct of
the people's business is a fundamental and necessary right of every person in this
17 state.
18
19 83. Government Code § 6252(e) defines public records to include "any writing

20 containing information relating to the conduct of the public's business prepared, owned, used, or
retained by any … local agency…"
21
22
84. Government Code § 6253(b) states that:
23
"Except with respect to public records exempt from disclosure by express
24
provisions of law, each state or local agency, upon a request for a copy of
25 records that reasonably describes an identifiable record or records, shall
make the records promptly available to any person upon payment of fees
26 covering direct costs of duplication…"
27
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 85. Government Code § 6253(d) states that "nothing in this chapter shall be
2 construed to permit an agency to delay or obstruct the inspection or copying of public records."
3
4 86. Government Code section 54957.1 states that:
5 (a) Notwithstanding Section 6255 or any other provisions of law, agendas of
public meetings and any other writings, when distributed to all, or a majority of
6 all, of the members of a legislative body of a local agency by any person in
7 connection with a matter subject to discussion or consideration at an open
meeting of the body, are disclosable public records under the California Public
8 Records Act (citation omitted), and shall be made available upon request without
delay….
9
10 (b) (1) If a writing that is a public record under subdivision (a), and that relates
to an agenda item for an open session of a regular meeting of the legislative
11 body of a local agency, is distributed less than 72 hours prior to that meeting, the
writing shall be made available for public inspection pursuant to paragraph (2) at
12 the time the writing is distributed to all, or a majority of all, of the members of
13 the body.

14 (2) A local agency shall make any writing described in paragraph (1) available
for public inspection at a public office or location that the agency shall designate
15 for this purpose. Each local agency shall list the address of this office or location
16 on the agendas for all meetings of the legislative body of that agency. The local
agency also may post the writing on the local agency's Internet Web site in a
17 position and manner that makes it clear that the writing relates to an agenda item
for an upcoming meeting.
18
19 (c) Writings that are public records under subdivision (a) and that are distributed
during a public meeting shall be made available for public inspection at the
20 meeting if prepared by the local agency or a member of its legislative body, or
after the meeting if prepared by some other person.…
21
22 (e) This section shall not be construed to limit or delay the public's right to
inspect or obtain a copy of any record required to be disclosed under the
23 requirements of the California Public Records Act….

24
87. Respondent violated Government Code section 6253 by failing to produce and
25
unlawfully withholding public records after a request by Petitioner.
26
27
88. Government Code § 6258 provides:
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 “Any person may institute proceedings for injunctive or declarative relief or
writ of mandate in any court of competent jurisdiction to enforce his or her
2 right to inspect or to receive a copy of any public record or class of public
3 records under this chapter.”

4
5
WHEREFORE PETITIONER PRAYS AS FOLLOWS:
6
7 1. For a declaration that Respondent/Defendant ALAMEDA COUNTY

8 ASSOCIATED COMMUNITY ACTION PROGRAM GOVERNING BOARD violated the

9 Brown Act by:

10 a. taking action on items without releasing the vote of the members of the

11 Board;

12 b. failing to provide agendas and documents relating to upcoming meetings

13 after receiving a request from Petitioner.

14 c. discussing and taking action on matters at a regular meeting which were

15 not listed on the posted agenda and did not constitute a matter requiring

16 immediate action which was discovered after the posting of the meeting’s

17 agenda.

18 d. discussing and taking action on items of business without providing

19 notice of opportunity for public comment either prior to or during the

20 discussion and/or action.

21 e. discussing items of business at a special meeting which did not appear on

22 the posted agenda.

23 f. holding an “emergency meeting” where no emergency situation existed.

24 g. holding a closed session to discuss litigation without existing facts and

25 circumstances justifying the closed session; not properly noticing closed

26 sessions to discuss litigation; and, by failing to announce existing facts

27 and circumstances related to anticipated litigation.

28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 h. holding a closed session to discuss specific complaints and charges
2 without complying with the 24 hour notice requirement and by holding a
3 closed session to discuss personnel without providing notice of the
4 specifc person or persons to be discussed.
5 i. failing to properly disclose actions taken in closed session.
6
7 2. For a declaration that Respondent/Defendant ALAMEDA COUNTY
8 ASSOCIATED COMMUNITY ACTION PROGRAM GOVERNING BOARD violated the
9 California Public Records Act by withholding public records after a lawful request, including,
10 but not limited to:
11 a. A copy of the complete ACAP Organization Assessment as submitted to
12 Governing Board members Supervisors Nate Miley and (then ACAP
13 Chair Robert Lieber;
14 b. The letter which was described by Associated Community Action
15 Program Governing Board Member Nate Miley at the February 2, 2011,
16 meeting.
17
18 3. That after a trial of this action be held on notice, this court should cause a
19 peremptory writ of mandate to issue, ordering:
20 a. Respondent/Defendant ALAMEDA COUNTY ASSOCIATED
21 COMMUNITY ACTION PROGRAM GOVERNING BOARD to comply
22 with the provisions of the Brown Act by:
23 i. releasing the vote of the members of the Board on all actions
24 taken;
25 ii. provide agendas and documents relating to upcoming meetings to
26 Petitioner and to members of the public who have or may in the
27 future request such notice.
28

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VERIFIED PETITION FOR WRIT OF MANDATE
 1 iii. not discussing and taking action on matters at a regular meeting
2 which were not listed on the posted agenda and do not constitute a
3 matter requiring immediate action or which was known prior to
4 the posting of the meeting’s agenda.
5 iv. discussing and taking action on items of business only after
6 providing notice of opportunity for public comment either prior to
7 or during the discussion and/or action.
8 v. not discussing any items of business at a special meeting which do
9 not appear on the posted agenda.
10 vi. only holding an “emergency meeting” where an “emergency
11 situation exists”
12 vii. only holding a closed session to discuss anticipated litigation
13 where the existing facts and circumstances justify the closed
14 session; by properly noticing closed sessions to discuss litigation;
15 and, by announcing existing facts and circumstances related to
16 anticipated litigation prior to the closed session, when required by
17 the Brown Act.
18 viii. only holding a closed session to discuss specific complaints and
19 charges after complying with the 24 hour notice requirement and
20 by only holding a closed session to discuss personnel after
21 providing notice of the specifc person or persons to be discussed.
22 ix. disclosing actions taken in closed session, as required by the
23 Brown Act.
24 b. The actions taken by Respondent/Defendant ALAMEDA COUNTY
25 ASSOCIATED COMMUNITY ACTION PROGRAM GOVERNING
26 BOARD to: (i) place Petitioner Dillard on administrative leave; (ii) to
27 appoint an interim executive director; and (iii) to terminate Petitioner
28 Dillard as Executive Director, all be declared null and void;

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VERIFIED PETITION FOR WRIT OF MANDATE
 VERIFICATION
(C.C.P. §§ 446 and 2015.5)

STATE OF CALIFORNIA, County of Alameda,

I am a Petitioner in the above-entitled action or proceeding. I have read the foregoing

VERIFIED PETITION FOR WRIT OF MANDATE, AN INJUNCTION, AND
DECLARATORY RELIEF FOR VIOLATIONS OF THE RALPH M. BROWN ACT;
EXHIBITS A THROUGH R and know its contents. I certify that all material facts alleged in
the petition are true of my own personal knowledge.

This Verification was executed on April 25, 2011, at El Cerrito, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

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VERIFIED PETITION FOR WRIT OF MANDATE