HERCULES -- The City Council's conduct in a recent property negotiation is prompting criticism from a longtime council watchdog that the city is relapsing into the culture of secrecy of its recent past, when questionable closed-door financial dealings left Hercules near bankruptcy and under FBI scrutiny.

"This is a council that continues to distort the record and hide their activities," Jeff Wisniewski, publisher of the local website Waterfront Watch, said in an email this week.

Wisniewski said the council violated open meeting rules during negotiations over the 17.27-acre Parcel C, midway between San Pablo Avenue and San Pablo Bay, with a prospective buyer that, according to a May 14 closed session agenda item, was "to be determined."

Reporting out of closed session that day, City Attorney Patrick Tang said, "Multiple offers were received, and staff was given direction from council on this item."

But it was not until more than a month later, on June 25, when Parcel C was not even on the agenda, that Tang, referring to the May 14 council meeting, announced that the council had "previously given direction to City Manager Steve Duran to discuss the purchase of Parcel C with (developer) Lewis Homes."

By then, Wisniewski had already reported on his website that the city and Lewis were close to a deal and that Lewis was proposing an apartment complex at the site: Wisniewski, an engineer, said he got the information from "industry sources."


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At the June 25 meeting, Tang, explaining the delay in announcing the May 14 closed session decision on Parcel C, said:

"This item was not previously reported out so that .... the brokers could contact other potential interested parties prior to hearing about it in the press." He added that the May 14 vote on the Parcel C item was 4-1, with Councilwoman Myrna de Vera dissenting.

Said Wisniewski, "Is that a legitimate reason to not disclose reportable action?"

"It pains me to know how they've worked themselves into a lather of deceit (that) they think they're doing the right thing," he said in an email.

Terry Francke, general counsel of the open government advocacy group Californians Aware, said a closed session is not intended to be used to discuss the pluses or minuses of a merely potential property transaction, or the likely buyers, sellers or other interested parties.

"(California Government Code) Section 54956.8 assumes that authority has already been given in open session to enter into negotiation with all these particulars already determined -- because the session must be preceded by a statement identifying the property and the other party to the negotiations," he said in an email.

As for Tang's explanation for the timing of announcing the council's May 14 closed-session decision to negotiate with Lewis, Francke said:

"The Brown Act does not authorize a delayed disclosure as a courtesy to private business."

Tang, in a telephone interview, said the council did not know before the May 14 closed session started whom it would negotiate with, and therefore the negotiating party could not be identified in the agenda item.

He said nothing legally would have prevented the council from listing all of the possible parties, nor did anything legally require it to do so, either. But to reveal all the names could put the city at a disadvantage, he said, if only because if it turns out that some are not viable, it could restrict the city's hand in striking a favorable deal.

Tang said no date had been set when to report the May 14 action, but "the implication was as soon as feasible," and that arguably it could have occurred somewhat sooner.

Said Wisniewski, "Why all the hiding re: Parcel C?" noting that the bidders had been identified in recent transactions involving other Hercules properties such as Sycamore North, Sycamore Crossing and Victoria Crescent. "What do they not want the public to know for Parcel C?"

On Tuesday, the council postponed a closed-session discussion agendized as involving "party(ies) to be determined," concerning the Civic Arts building on Railroad Avenue, the former location of Sala Restaurant. Tang said the council had directed the city staff "to explore other ways to notice the item that might include ... parties that are under negotiation or have provided bids to the city."

Even so, during a public comment session later in the meeting, Wisniewski called on the council to dismiss Tang.

Contact Tom Lochner at 510-262-2760 or tlochner@bayareanewsgroup.com. Follow him at twitter.com/tomlochner