Appeals Court OKs Lawsuit against Fremont over Verified-Response Meetings

FREMONT -- An appeals court has ruled that a Fremont man can pursue his lawsuit alleging that the City Council violated the state's open-meetings law before implementing its controversial burglar alarm policy in early 2005.

However, the state's First Appellate District Court in San Francisco on Tuesday upheld a lower court ruling dismissing claims against City Manager Fred Diaz and police Chief Craig Steckler.

It affirmed last year's Alameda County Superior Court decision that cleared the city officials of violating the Brown Act, the state law requiring that meetings of public bodies, including city councils, be conducted in an open and public way.

However, the three-judge panel's decision stated that the Superior Court must hear claims that Fremont council members might have improperly reached a consensus about the policy to limit police response to burglar alarms.

"This is not a ruling where I can claim victory," said J. Dennis Wolfe, of Fremont, the lawsuit's plaintiff. "This ruling is for citizens who want open and honest government."

Diaz and Steckler both declined to comment on Tuesday's ruling, refer-ring all questions to City Attorney Harvey Levine.

"The good news is (the appellate court justices) agreed with the trial court judge that the attempts to bring an action against the police chief and city manager under the Brown Act fail," Levine said.

The issues revolving around whether the City Council violated the Brown Act will be litigated, Levine added.

Public comments made last year by Councilmember Dominic Dutra were the main basis for the ruling, written by Justice Sandra Margulies.

The lawsuit alleges that Dutra publicly acknowledged at a March 2005 meeting that the City Council had been fully briefed on the burglar alarm proposal and had expressed its support of the plan in advance of a meeting held Feb. 22, 2005.

Margulies wrote that the appellate court judges found the lawsuit's allegations persuasive on this issue because:

-The council members discussed the issue among themselves, providing an opportunity for collective action.

-Dutra claimed to be aware of the views of each of his fellow council members before any public City Council discussion of the issue had occurred at the Feb. 22 meeting.

"If that shared view was reached 'collectively,' the Brown Act was violated," Margulies stated in the decision.

Dutra, who is not seeking re-election this year, could not be reached for comment.

Steckler addressed council members about the new "verified response" policy before the public comment period at the Feb. 22 meeting, even though the topic was not an agenda item. This action was a factor in the ruling, Margulies said, because it "creates the impression of a concerted effort to shape public perceptions of the new policy."

Steckler first implemented the burglar alarm policy in March 2005, when he ordered officers not to respond to alarms unless they could verify a crime had occurred. The change was intended to save money for Fremont police, who said they were wasting nearly $600,000 per year responding to false burglary alarms.

But the policy immediately came under fire from a number of people, including Wolfe, a frequent critic of City Hall.

Burglaries in Fremont increased by 14.4 percent in the first year following the policy change, increasing from 854 between April 2004 and February 2005, to 977 during the same period in 2005-06. Authorities have said there is no correlation between the crime increase and the policy change, pointing out that burglaries also were up in other Bay Area cities during that time.

But Wolfe asserts that the burglar alarm policy was implemented to create a climate of fear in order to build voter support for Measure L, a tax measure on the Nov. 7 ballot that would levy a 4 percent tax rate on natural gas and electricity bills.

While Wolfe has been a vocal critic of the proposed tax, city officials have backed the measure, saying that it would create about $8 million annually to help restore Fremont's lagging police and fire services.

Mayor Bob Wasserman strongly disagreed with Wolfe's assertion.

"Tying Measure L to the alarm policy is ludicrous," he said. "The one thing has nothing to do with the other."

Wolfe said he has spent "tens of thousands of dollars" on the lawsuit, although he declined to give an exact figure. When reached by phone Wednesday afternoon, Fremont officials said they were uncertain how much the city has spent thus far on the lawsuit.

Meanwhile, Wolfe said a new trial can be avoided if the city modifies the burglar alarm policy.

"I'm not happy (about the recent ruling)," Wolfe said. "I'm just sad that it has come to this."

Staff writer Ben Aguirre contributed to this report.

Staff writer Chris De Benedetti covers Fremont issues. He can be reached at (510) 353-7002 or.