Pictured: Ventura City Hall
by Kimberly Rivers
The city of Ventura has released a contract it entered into with Mustang Marketing following a Public Records Act (PRA) request submitted by the Ventura County Reporter. The city initially refused the request calling the contract privileged as part of pending litigation, but following receipt of a letter from the nonprofit watchdog organization the First Amendment Coalition (FAC), the city was compelled to release the contract.
On Aug. 2, 2020, the VCReporter submitted a PRA request to the city of Ventura asking for the contract document the city approved with Mustang Marketing, a Thousand Oaks-based public relations firm, to assist the city during the Ventura Watershed Adjudication legal action, which has involved the owners of over 12,000 properties in the Ojai Valley and Ventura in a contentious process to lay out and determine water allocations for the entire watershed.
The city hired Mustang following a public meeting held in Ojai on Jan. 30. The room was packed full of people and the city was accused of filtering out questions it didn’t want to answer. The vote to hire the marketing firm and the amount the city was going to pay them was never reported to the public as required under the Brown Act, a body of state laws that guarantees city business is conducted in full view of the public. Certain items can be discussed in closed sessions, but any decisions made or votes taken in closed sessions must be reported to the public, and most contracts entered into are also public documents. The amount being paid to Mustang was previously released following several requests from different parties, including members of the public, the Ojai Valley News and the VCReporter.
On Aug. 11 in a letter signed by Gregory Diaz, Ventura City Attorney, the city responded to the PRA request and declined to produce the contract with Mustang, stating it was an “exempt” document under the PRA. The response said the contract was related to “expert billings in this pending litigation.” (Online correction: Fri. Aug. 28, this online story was corrected to state the city claimed the documents were exempt under the Public Records Act.)
“This sounds like a practical joke,” said Glen Smith, litigation director with FAC, a California-based nonprofit organization. “Their work product might be exempt depending on the role the firm played, but the contract itself cannot be exempt. I guess it wasn’t included in the agenda packet when it was approved.”
It was not, because the contract was never placed on a meeting agenda. Items, such as contracts, that the city council is reviewing and voting on are required to be attached to the agenda for public viewing. As the Mustang contract appeared on no agenda, was not voted on in open session, and was not initially reported as a closed session vote (the city released the vote previously in response to a separate PRA request), the contract never saw the light of day.
On Aug. 17, the FAC submitted a PRA request to the city, mirroring the request made by the VCReporter and citing the city’s Aug. 11 response.
“The grounds for nondisclosure cited in your Aug. 11, 2020 letter . . . are invalid,” stated Sherene Tagharobi, legal fellow with FAC, in the Aug. 17 letter. “Nondisclosure of the Contract and related communications would controvert both the [California Public Records Act] and the California Constitution. The Contract is not a privileged attorney-client communication.”
The letter further admonished the city, stating that “a media campaign is not a litigation strategy . . . some attorneys may feel it is desirable at times to conduct a media campaign,” but such a desire “does not transform their coordination of a campaign into legal advice.” The city cannot withhold the contract with Mustang because it is “merely an agreement for professional services entered into by the City and a marketing agency, not attorney work product.”
On the afternoon of Aug. 17, the same day the city received the letter from FAC, the VCReporter received the Mustang contract, with one redaction under the header, “Firm Services, firm will provide city in the following litigation support services.” One or two lines under that heading are blacked out. The rest of the contract is standard contract language, and names Diane McKay, owner of Mustang Marketing and trustee on the Ventura County Community College District Board, as the main contact for the firm with the city.
The initial contract was signed on Feb. 27, 2020, for a maximum of $50,000. Since then the parties have amended the contract twice, on May 10 and Aug. 4, each time increasing the fee cap by $50,000, to a current total of $150,000.
Click link to view the Aug. 17, 2020 California Public Records Act request from the First Amendment Coalition to the city of Ventura: 08.17.20 CPRA Request – City of Ventura
Click to view the Mustang Marketing contract released by the city of Ventura on Aug. 17, 2020, six months after the city approved and entered into the contract: Response Correction to 8.3.20 Public Records Request.v22.214.171.124.Attachment