January 6, 2011
The Forest Theater Guild has hired an attorney and may be preparing to take legal action in their fight for the opportunity to operate in the Indoor Forest Theater.
It was reported in the Weekly on Dec. 16 that at the city of Carmel’s Nov. 2 city council meeting, the council granted a lease on the space to Stephen Moorer's Pacific Repertory Theatre's School of Dramatic Arts (SoDA) performance teaching program in the wake of the dissolution of Children's Experimental Theater. The first SoDA program is slated to take place there Monday and Tuesday, Jan. 10 and 11, with classes gearing up for February, says Moorer.
Not so fast, says Forest Theater Guild board president Rebecca Barrymore. She contends that the Guild—and the greater community—weren't properly notified that the lease would be awarded at that meeting.
“They've gone around the process of proposal," she says, "without giving the Forest Theater Guild a chance to go before the city and make a proposal."
Carmel city manager Rich Guillen says a “packet,” including his recommendation to the city council prior to the Nov. 2 meeting, was emailed to the Guild's former president and current board member Safwat Malek on Oct. 28, after the two talked about the Guild's interest in the Indoor Forest Theatre space.
Guillen’s recommendations to the mayor and the city council were that they issue a Request for Proposal or, as an alternative, not issue an RFP and simply go with PacRep, which had submitted a proposal upon hearing of CET's pending vacancy.
Stephen Moorer cites that document as sufficient notice of what was happening at the Nov. 2 meeting. He writes in an email: “Seems pretty clear to me—note ‘Another alternative’ and ‘forego the circulation of a RFP...’”
He also says that he received the keys to the 50-seat theater space from Nick Hovick, who had taken over as artistic director of Children's Experimental Theatre when his mother, founder Marcia Hovick, became too ill.
But the Guild counters—resoundingly. They say they’ve hired attorney Steven Beal regarding the matter, and at the Jan. 4 council meeting, during an open forum called “Public Appearances,” Barrymore asked the council to “vacate” the lease with PacRep and consider the proposal that the Guild turned in on Nov. 15. She also seconded the statement of former Carmel mayoral candidate Adam Moniz, who spoke just before her, that the council might have committed an infraction of the Brown Act, which requires prior notice of a determined length of time and sufficient scope to allow transparency on city council meetings and decisions. The “preamble” to the law is not cryptic in its intent: “The people insist on remaining informed so that they may retain control over the instruments [government] they have created.”
In Moniz's written statement, which he read at the Jan. 4 meeting during the Public Appearances segment, he states: “As you are no doubt aware, under the Brown Act, the Carmel City Council is required by law to post an agenda containing a brief general description of each item of business to be transacted or discussed at one of its regular monthly meetings. The Brown Act explicitly prevents action being taken on any item not appearing on the posted agenda.”
Moniz, who earned law degrees from Syracuse University Law School and Georgetown University Law School, says, “The Brown Act does not deem [Guillen’s] packet to be the controlling document. [The] one that counts is the Nov. 2 Agenda, on the city's website…item F. According to the Brown Act, that is the only statement that counts."
It reads: “Receive report and provide policy direction on circulating a Request for Proposal (RFP) for the management and operation of the Children’s Experimental Theater.”
As reprinted in the villageinforest.blogspot.com, Moniz clarified the matter before the city council: “In case it’s helpful, I would remind everyone that neither the City Administrator’s report nor the agenda packet presented to the city council in connection with that meeting was an acceptable substitute for the posted agenda mandated by the Brown Act.”
Details are not discussed in the Public Appearances forum, says councilmember Jason Burnett. Instead, he says he asked the city attorney, Don Freeman, who was late to the Jan. 4 meeting, to “look into the question Adam raised.”
Mayor Sue McCloud similarly deferred any matter arising out of Moniz's comment to Freeman. “I have nothing to say about that,” McCloud said. “Adam addressed his questions to the city attorney.”
Moorer says he didn’t attend the Jan. 4 meeting; when contacted, he was in the midst of cleaning the Indoor Forest Theatre, where he found old pictures of himself there. “I had no idea a couple of people would get up and speak. Whether there’s some Brown Act issues, I don't know. I'm not a lawyer. That's a question for the city attorney.
“If I was somebody interested in the theater,” he continues, “I would at least show up to the [Nov. 2] meeting. To not show up at all...[and] to make an issue after the fact, strikes me as supremely uncool.”
Decorum aside, Moniz and Barrymore believe that an exchange between Don Freeman and Mayor McCloud that followed the Jan. 4 meeting’s Public Appearances segment, is “instructive.” It comes at the two-hour mark in the city’s online video record of the meeting.
“Let me ask you a question before you say anything,” says Freeman to Mayor McCloud. “Is this actually on the agenda this evening?”
It’s determined that the item in question, a grant application, was “eliminated,” according to McCloud.
“Okay, so it's not before the council this evening?” he says. “I just quickly looked at a question that was presented by Adam Moniz on a prior application, and we're not going to run into that problem again so I'm not going to let you take any action on this item tonight...you can do the others [that are on the agenda] as you wish, but not this one."
Moniz’s invocation of the Brown Act wasn’t the first at that meeting. Earlier, Jason Burnett referred to the state law: “I believe, under the Brown Act, we’re not supposed to talk about [an unrelated matter], so I make a motion to move on.”
That’s what Barrymore believes should have happened at the Nov. 2 meeting at which the council awarded PacRep the lease. “You can't put one thing on the agenda and then do something else,” Barrymore says, which Moniz supports.
What may not work in the Guild's favor, however, is that one of the criteria Guillen recommends the city council consider is “operational budget,” and he's stated that the Guild still owes the city money from prior seasons, most notably the one during which the nation’s economic meltdown took hold. But he also says the Guild has paid half of what was owed and has worked out a plan with the city to pay the rest this year.
Moniz reiterates that he’s not partial to any one party—he even champions the idea that more than one theater company can collaborate in the Indoor Forest Theatre space—and instead wants everyone to focus on “nothing less than having the best program in place for the children of our community out of great respect for Marcia Hovick’s legacy.”
He thinks the way to do that is to start over: Rescind the lease from PacRep, issue an RFP, invite public discussion, and then decide.
“For all we know,” he says, “[the best proposal] may be that PacRep proposal.”
City attorney Freeman couldn’t be reached for comment, but Burnett says that he instructed him to examine the matter and recommend—within three weeks—the city’s position regarding the legality of its Nov. 2 decision to grant PacRep the lease. That way, the city can give sufficient notice about the matter for the next council meeting in February.