January 20th City Meeting with Task Force
Dear Mayor McEntee, Vice Mayor McCauley, and Councilmembers Ossa, Wickham, and Carmel, and City Manager Piombo,
We are writing in response to what was for us a difficult and demeaning interaction with the City’s Working Group on January 20 in which we were warned of civil and criminal liability if the Task Force on Diversity Equity and Inclusion [DEI Task Force] continued our public advocacy efforts. This letter seeks: to clarify the circumstances surrounding our service as members of the Task Force; to correct some erroneous factual and legal assertions made by the City’s Working Group to the Task Force Leadership Team at their meeting on January 20 and reiterated in Mr. Piombo’s January 22 email to the entire Task Force; and to suggest some ways in which members of the Task Force might assist the City going forward. Our goal remains to promote honest and productive dialogue.
INTRODUCTION
Let’s begin with the positive. On January 20, our Leadership Team was pleased finally to hear that the City had not foreclosed the Task Force’s two foundational recommendations: (1) a permanent DEI Commission; and (2) an expert facilitated racial equity plan. The Task Force continues to believe that—by assigning City staff to sort, cull and prioritize the Task Force recommendations in advance of obtaining the necessary expert DEI guidance and leadership—the City has put the cart before the horse, thereby diminishing the efficiency and value of the recommendations. Nevertheless, we appreciate that Council apparently will, ultimately, have an opportunity to discuss and vote on these recommendations.
Likewise, we appreciate that some in City leadership would like to see Task Force members play some future role in the City’s DEI efforts now that we have completed our Report & Recommendations. So far, however, no one has been able to articulate what the City might hope to gain from our continued participation other than to say that—to the extent that the City adopts recommendations from our Report—Task Force members might answer staff questions, if any, about those recommendations. As authors of the report, members would be more than happy to clarify and elaborate on the existing work that we completed and presented to the City Council at its December 7 meeting.
However, we cannot agree with the City’s effort to constrain and control the actions and advocacy of the Task Force in perpetuity as our reward for having offered our services for a limited time and purpose, and we reject the City’s assertion that this is compelled by the Brown Act. A brief review of the genesis, scope of work, and duration of the Task Force and its relationship to the City (Part I, below), and the express language and purpose of the Brown Act (Part II, below), reveals that the Task Force is not now, nor was it ever, subject to the Brown Act constraints.
We can envision and are willing to consider, further and additional roles, particularly to the extent that we can help provide a missing BIPOC voice and perspective to the City’s DEI initiatives and decisions. Some of these are enumerated in Part III, below. We welcome a discussion with the City as to these and other options.
I.
FACTUAL BACKGROUND: THE DEI TASK FORCE
AND ITS RELATIONSHIP TO CITY GOVERNMENT
July 6 to Dec. 7, 2020: Creation, Scope of Work and Duration of the DEI Task Force
In response to Black Lives Matter protests following the Mayor’s statement dismissing the issue as “not a matter of immediate local importance,” the City authorized the creation of an advisory “Inclusion and Diversity Task Force” for a limited purpose: “to review and develop additional actions, investigate best practices and make specific recommendations for next steps.” Resolution No. 20-37, Section 5, 1 (July 6, 2020). The City Council created an internal Working Group, comprised of Mayor McEntee, Councilmember Ossa, and City Manager Piombo, to direct the City’s DEI Efforts.
The Working Group selected and hired a facilitator to create and manage the Task Force made up of community members and, thereafter, supervised the facilitator’s operations. The facilitator conducted an application process and ultimately chose 22 knowledgeable, local racial justice advocates to participate. Apparently, the facilitator recommended to the City, and the City agreed, that the DEI Task Force would include no representatives from the City Council. The City did, however, provide a senior staff member to assist the facilitator who attended and helped to organize Task Force meetings.
Consistent with the City’s Resolution, the facilitator charged the Task Force with: reviewing nearly 100 community recommendations concerning racial equity that the City had received; conducting our own independent investigation and research across six facets of community life; and presenting recommendations to the City for advancing racial equity. The Task Force was given, and adhered to, a strict two-month schedule within which to perform our work: we began meeting on October 6, 2020, delivered our Report to staff on November 24, and presented our Report & Recommendations to the City Council on December 7. The December 7 meeting marked the facilitator’s last day and—as noted in our Report & Recommendations on page 15—the completion of our official duties.
The Task Force fully expected that the City Council would embrace our two foundational recommendations at the December 7 meeting as we requested in our Report and presentation. We believed that a DEI Commission and the assistance of a DEI expert would provide the racial equity training, tools, and leadership the City would need to effectuate the Task Force recommendations (and other essential initiatives) without further Task Force participation. When Council failed even to discuss the two recommendations, and a Councilmember instead suggested that the Task Force might serve some unspecified advisory role in the future, the Task Force was at a loss. Our job was done. We had no ongoing role, goal or facilitator, and the fate of our recommendations—even the most critical among them—was left in doubt.
We were and are uncomfortable that this Councilmember’s public comment and other City actions might imply to members of the public that the Task Force is somehow guiding and endorsing the City’s current approach to DEI issues. As you know, the Task Force has not been invited, nor has it agreed, to weigh in on any of the City’s DEI activities or initiatives since December 7, 2020.
We acknowledge that Task Force members have continued to refer to our group as the “DEI Task Force” even after the conclusion of our services to the City. This is not to suggest—as the City’s attorney implied on January 20—that we are, or believe ourselves to be, still and forever an operating Task Force of the Mill Valley City government. Just as the Tuskegee Airmen would always refer to themselves as such even long after the war, we were, are, and always will be, the group that comprised the DEI Task Force and developed its Report & Recommendations.
Dec. 8, 2020 to Jan. 20, 2020: DEI Task Force Advocacy Following Completion of Work
After the December 7 meeting, Task Force members met and decided as a group that we would be willing to consider some further advisory role with the City, at least until the City obtained expert DEI guidance and/or empaneled a DEI Commission. However, we agreed we could not begin to assess whether and under what circumstances we might accept such a role until we received clarification from the City: first, on the status of our two foundational recommendations which we believed would obviate the need for a further Task Force role; and second, as to precisely what task, powers and/or duties the City wished us to undertake.
We understood that, due to the constraints of the Brown Act, these issues could only be addressed by the full City Council at an agendized and noticed meeting. The Task Force therefore repeatedly and publicly requested that opportunity—individually, collectively, orally and in writing. Hundreds of sympathetic community members echoed our requests for a DEI Commission and expert facilitated Racial Equity Plan, across multiple City Council meetings. All requests were consistently ignored.
Meanwhile, tension was building between City leaders and members of the Task Force. Council members and City staff publicly criticized the tone and content of Task Force communications and expressed displeasure that Task Force members and so many others were speaking at Council meetings “about things we are already doing.” Some in City leadership expressed their exasperation at the Task Force and its allies for our purported ignorance of government processes. Those feelings were undoubtedly further fueled when a story on the impasse appeared in a local paper on January 12 under a headline characterizing Task Force requests as allegations of “foot dragging” by the City Council.
For our part, Task Force members were dismayed to see our simple questions repeatedly ignored by Council and staff, particularly in light of the thousands of hours we had dedicated to preparing the Report & Recommendations. BIPOC members were especially offended when critiqued on their “tone” after sharing their heartfelt stories and concerns at public meetings.
January 20, 2021: Working Group & Leadership Team Meeting
Perhaps unsurprisingly, when the City’s Working Group finally sat down with the Task Force Leadership Team on January 20, 2021, the two groups approached the meeting from utterly different perspectives. The Leadership Team had decided to attempt to reboot our relationship with City leaders and said as much when the meeting opened. Since the Working Group had called the meeting, the Team intended to reserve its questions about the proposed role of the Task Force and the status of the foundational recommendations until the Working Group presented its ideas, questions and concerns.
Under the Mayor’s watchful guidance, the Working Group immediately made clear that its agenda was to “educate” the Leadership Team about the legal consequences Task Force members would face if we continued to meet collectively or to engage in public advocacy of the sort that had occurred since December 7.
The City Manager, and an attorney brought in by the Working Group, took turns “advising” the Team at great length that the Task Force was and continued to be a “government commission” subject to the Brown Act. They warned the Team, often in a loud and aggressive manner, that Task Force members would be subject to severe civil and criminal penalties if we did not, among other things: immediately cease meeting in groups larger than half of our membership; refrain from communicating as a group, either collectively, serially, through email, social media, or other means (including speaking at City Council meetings during public open time); and arrange any future meetings or communications among our members through the City at an agendized public meeting. To reinforce its admonitions, the Working Group proposed to send all Task Force members to a two-hour training on the Brown Act.
Significantly, the Working Group delivered this “education” more than six weeks after the Task Force had completed its work on December 7. Yet during our eight-week assignment from October 6 to December 7—when the Task Force worked intensively and held only two public meetings—the Task Force received no similar admonition or offer of Brown Act training from the City.
An attorney on the Task Force Leadership Team finally interjected to offer her understanding that the Task Force was exempt from the Brown Act under its explicit terms, and to note that the Task Force had, in any event, completed our work for the City on December 7. The Team member received an angry scolding from the City Manager for her interruption, after which the City’s attorney replied that the Team member was simply “wrong” on the first count. On the second count, he asserted that the Task Force would remain an arm of City government subject to the Brown Act in perpetuity until either we were formally released from service by the City Council, or our members formally resigned.
We hope and expect that, whatever our relationship with the City might be in the future, Task Force members will not again be subjected to such condescension and intimidation by the City Working Group.
When the Working Group’s lecture finally wound down, the Task Force Leadership Team suggested that the groups put the Brown Act aside for the time being. The Team then proceeded to ask its questions: (1) How, if at all, did the Working Group think the Task Force might assist the City’s racial equity efforts going forward (e.g., What would be its roles, goals, tenure, relationship to the City Council, City Staff, City Departments? How would it differ from, or interact with a permanent DEI Commission?); and (2) What was the status of the two foundational recommendations presented by the Task Force?
On the first question, the Working Group tenaciously deflected the Team’s repeated inquiries about the proposed future role of the Task Force. The one thing that the Working Group did make clear was that Task Force members had no City-sanctioned role after December 7 and should remain silent—particularly at City Council meetings—at least until Staff finished culling and sorting the Task Force recommendations (perhaps by February 18). This position seemed to contradict the Working Group’s simultaneous insistence that the Task Force remained a fully functioning “legislative body” subject to the Brown Act.
As to the second question, the Team was relieved to hear that our two foundational recommendations had not been conclusively eliminated but would be considered as part of staff’s sorting and culling of the Task Force recommendations.
II.
THE WORKING GROUPS’ ATTEMPT TO CURTAIL THE TASK FORCE THROUGH THE BROWN ACT
CONTRAVENES BOTH THE LETTER AND PURPOSE OF THE LAW
The City’s attorney was correct in stating, as a general matter, that committees and other bodies created by formal action of a City Council are subject to the Brown Act. See, Cal. Gov. Code Sec. 54952(b). However, that same section of the Act contains “a specific exemption for an advisory committee which is comprised solely of less than a quorum of the members of the legislative body that created the advisory body.” Cal. Attorney General, The Brown Act: Open Meeting for Local Legislative Bodies (2003) pp. 5-6 (“AG’s Brown Act Guide”); see Taxpayers for Livable Communities v. Malibu, 126 Cal.App.4th 1123, 24 Cal.Rptr. 493, 496 (2005) (“The Brown Act applies to any ‘other body’ that a local agency [such as the City Council] creates unless the other body consists of (1) less than a quorum of the local agency’s members, and (2) is only advisory.”)
The AG’s Brown Act Guide emphasizes the important distinction between: (1) “Governing Bodies” defined in Section 45952(a) (such as the City Council) that are created by statute or constitution; and (2) “Subsidiary Bodies” defined by section 45952(b), that are created by an official act of a governing body. Governing bodies are the core “legislative bodies” to which the Brown Act applies “whether the body is permanent or temporary, advisory or decision-making.” AG’s Brown Act Guide, supra at pp. 5-6. By contrast, subsidiary bodies (such as the DEI Task Force) are expressly exempt from the Brown Act if they are “advisory” and are comprised of “less than a quorum of the members of the legislative body that created the advisory body.” Id. (citing Cal. Gov. Code Sec. 54952(b)).
As an advisory ad hoc subsidiary body—comprised entirely of local community members and not one representative from the City Council (the governing body that created it)—the Task Force fell squarely within the exemption to the Brown Act contained in Section 54952(b) and was never properly subject to the Act’s provisions.
Importantly, even if the Task Force had not been exempted from the provisions of the Brown Act, the Task Force was empaneled for a limited time and purpose which was wholly fulfilled with the presentation of its exemplary Report & Recommendations by the December 7 deadline. At that point, no possible legal justification remained for silencing or constraining the group of citizens or its individual members. The claim by the City’s attorney—that once having served, the Task Force members could never again lawfully meet, communicate with each other, or participate in public advocacy unless and until formally excused by the City Council—has no basis in law and is utterly at odds with the letter and purpose of the Brown Act.
The purpose of the Brown Act is to promote informed democracy by ensuring government transparency and full public discourse.
The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Cal. Gov’t Code § 54950.
The Working Group’s effort to use the Brown Act as a muzzle to silence community inquiry turns the Act on its head. There is no rational interpretation of the Brown Act that would subject local citizens to involuntary perpetual government censorship and control on the ground that they once developed an advisory report at the invitation of their City Council.
Task Force members were tapped for this assignment to represent the community because of our knowledge and experience as local racial justice advocates. Since completing our Report & Recommendations, the (former) Task Force has been laser-focused on publicly pressing for transparency from the City government on its approach to the recommendations contained in the Report and other DEI initiatives—information the City has declined to provide. By organizing and publicly requesting the City to address these issues in an agendized public meeting, the Task Force has continually championed the central aims of the Brown Act. The notion that the public would somehow be better informed about the City’s DEI efforts if Task Force members would stop asking about them is simply insupportable.
III.
POTENTIAL ROLES AND OPTIONS FOR DEI TASK FORCE PARTICIPATION
IN MILL VALLEY’S FUTURE DEI EFFORTS
The Task Force has consistently expressed a willingness to advise and assist the City where feasible for the advancement of racial justice in Mill Valley. We would like to offer some suggestions as to what that might look like.
First, as authors of the Report & Recommendations, Task Force members are happy to consult publicly and privately with the City to elucidate our completed Report. For example, we would welcome the opportunity to review and comment on the upcoming staff report concerning its culling and sorting of our recommendations, and to participate in the February 18 Council meeting for that purpose. Likewise, we would be happy to respond to questions from Councilmembers and staff concerning implementation of the recommendations.
Second, we would agree that, at least until a permanent DEI Commission can be appointed, the City could benefit from the BIPOC voice and perspective that Task Force members can provide. This perspective would be particularly valuable to inform the development of the job description, scope of work and selection process for a DEI expert to facilitate a Mill Valley Racial Equity Plan. It could similarly help to shape the City’s development of a DEI Commission. We note that the City commonly seeks and receives input of this nature from special-focus community groups such as Sustainable Mill Valley and the Marin Bicycle Coalition.
We want to underscore the City’s need for expert guidance and ongoing, well-informed BIPOC input and leadership. This is why we continue to insist on the necessity of: employing a DEI expert who can help institutionalize an equity lens for all City actions and decision making; and empaneling a permanent DEI Commission that can sustain the work over time. Such a Commission would operate as an arm of City government and would, among other things: review, recommend, promote and oversee Mill Valley DEI initiatives; help to lead the Racial Equity planning process; monitor, investigate and assess relevant City data; report to the City Council and to the public on progress toward goals; develop and maintain DEI partnerships with neighboring cities, school districts and other allies; and oversee the civilian complaint recommendations in the Report.
The pervasive and interconnected web of systemic racism in our institutions cannot be addressed through an internal “business as usual” approach by the City that depends upon the very systems whose deficiencies we are all seeking to cure. This is why DEI best practices—as reflected in the recent executive order by the Biden administration—involve “infus[ing] a focus on equity into everything the federal [and local] government does.” See Wootson & Jan, Biden to Sign Executive Actions on Equity, Washington Post (Jan. 26, 2021).
CONCLUSION
We anticipate that some in City leadership will read this letter as a shot across the bow of City government; but we assure you that this is not our intention. Our focus in this process is not the Working Group, the City Council or any of its members. In order to expose and heal the ugly wound of racism in our community, we believe we must engage more profoundly, more honestly and with greater urgency. If the Task Force and its members are passionate in our actions and expressions, it is because racism is deeply and profoundly felt by so many in our group and in our community.
We remain hopeful that we can find common ground and an effective way forward on this difficult journey. We look forward to hearing from you about your vision for this process and our participation in it.
Sincerely,
All of us in the (former) DEI Task Force
Megan Acio
Amber Allen-Pierson*
Sacha Bunge*
Johanna Calabria
Nancy Carlston
Dart & Esther Cherk
Naima Dean*
Tammy Edmonson*
Eileen Fisher
Zoe Fry
Running Grass
Halicue Hanna
Gilda Harger
Hilary Heaven*
Tammy Herndon*
Denmo Ibrahim
Frank Leidman
Elspeth Mathau*
Jasson Minadakis
Celimene Pastor*
* Leadership Team