Judge says Fresno’s city council violated state law with illegal budget process first exposed by Fresnoland

Every year, elected leaders at the City of Fresno would spend days hammering out final budget negotiations in closed-door meetings away from the public eye. 

In the days right before the Fresno City Council would approve a budget, a couple of its members would first get in a room with top officials from the mayor’s administration. 

And then the bartering would begin.

It’d go on for days — and upwards of $70 million in taxpayer funds would get divided up in meetings closed to the public.  

“There was a lot of sausage being made in the backroom over the last week,” said a grinning Mayor Jerry Dyer at a June 2023 post-budget news conference. 

It turns out that private budget negotiation process violated California law.

That’s according to Fresno County Superior Court Judge Robert Whalen, who issued a Monday ruling in a consequential lawsuit against the City of Fresno. 

Whalen’s ruling quoted directly from California’s Brown Act — a 73-year-old state law that mandates local governments and public agencies conduct the people’s business in public. Whalen listed a number of requirements for standing committees under the state law, including the key mandate to meet in public. 

“The Council met none of those requirements,” Whalen concluded. 

He issued the ruling about six weeks after the last court hearing in the lawsuit against the City of Fresno, which alleged its budget process violated the Brown Act due to annual private budget committee meetings. 

Fresno City Attorney Janz issued a news release Tuesday morning, calling Whalen’s ruling a win for the city since it didn’t place any sanctions or penalties on the City of Fresno. However, the news release left out the fact that Whalen found that Fresno city officials were illegally meeting in private to negotiate the budget.

“The (Fresno City) Council will decide whether to appeal an aspect of the ruling that found a budget committee was formed three years ago,” Janz said in the news release.

David Loy, the legal director at the First Amendment Coalition, told Fresnoland there’s no way to talk about the outcome of the Brown Act lawsuit against the City of Fresno without discussing the fact that a local judge determined Fresno city officials violated California’s Brown Act.

“This is a clear ruling from the court that the City of Fresno violated state law, violated the Brown Act,” Loy told Fresnoland, “which is the cornerstone of transparency and local government guaranteed by state law, and passed in the 1950s as a response to precisely these kinds of shenanigans that local governments were routinely doing decades ago.”

Loy credited Fresnoland for first uncovering the City of Fresno’s practice of privately negotiating the budget.

“This case would not have been possible without Fresnoland’s excellent reporting of this incredibly important story,” Loy said.

The lawsuit, filed by the ACLU of Northern California and the First Amendment Coalition, was triggered by an August 2023 Fresnoland investigation that exposed the Fresno budget process as a violation of state law.

Numerous legal experts said that under no circumstances should a city council committee meet privately on a regular basis for several years — especially about the city’s budget. The investigation also found that out of California’s 10 largest cities, Fresno was the only one to claim that its city council budget committee was exempt from state transparency laws. 

Additionally, internal city emails revealed in court documents demonstrated that city leaders were aware of the problems with their private budget committee even before the lawsuit, and Fresnoland’s investigation. 

Those emails showed that former Fresno City Clerk Todd Stermer raised red flags about the city’s budget process. Just two months before Fresnoland’s investigation, he told colleagues via email that the city’s budget committee should actually be meeting in public under the Brown Act’s requirements for standing committees. 

Nothing changed after those concerns were flagged by Stermer, who was also the City of Fresno’s Brown Act compliance officer at the time.

After Fresnoland’s August 2023 investigation, the Fresno City Council very quietly disbanded its budget committee, along with 10 other committees that met privately, while continuing to falsely insist that no laws had ever been broken. 

Then in November 2023, the pair of public interest groups sued the City of Fresno, making the case that its officials violated California law for at least five years.

During the very next budget process in June 2024, the Fresno City Council never convened a private budget committee, breaking a five-year practice following Fresnoland’s investigation and an ongoing lawsuit filed by two public interest groups. 

However, that did not lead to more transparency with the public. 

Instead of the old negotiation process built around a private budget committee, subsequent budgets have been negotiated by the mayor’s administration serially meeting with individual councilmembers, once again, in private, closed-door meetings.

How outside lawyers tried defending city officials

Attorneys Anthony Taylor and Michael Linden of Aleshire & Wynder, LLP argued the lawsuit on behalf of the City of Fresno. One of their main arguments was that the budget committee was a temporary, ad hoc committee exempt from the Brown Act since it dissolved every year after the passage of a budget — typically in late June — and then reformed the next year. 

However, emails revealed in the lawsuit’s discovery phase directly contradicted that claim.

Between 2019 and 2023, the Fresno City Council convened private budget committee meetings throughout the year, not just during the summer budget process, according to at least 11 email threads revealed in court documents.

Additionally, those emails showed the behind-the-scenes shock of high-ranking city employees regarding the budget process. It also showed one councilmember’s attempts to use the budget committee for private conversations before having public ones about the city budget during the middle of a fiscal year.

Since the beginning of the civil case, the city’s outside lawyers have argued that the original legal complaint was moot for a number of reasons.

Whalen shot down that argument in an August 2024 hearing in the civil case. 

Another of the city’s main arguments was that the Fresno City Council does not have jurisdiction over the city budget because Fresno’s city charter puts it on the mayor to prepare the budget. 

Whalen didn’t buy that argument, either, discarding it in a final, terse footnote in his Monday ruling. 

“The court recognizes the Mayor originates the budget, but it must be approved by the Council,” Whalen wrote. “Therefore, the Council does have subject matter jurisdiction over the budget.”

Additionally, the city council’s responsibility to adopt a balanced budget every year is required in Fresno’s city charter. 

While Whalen’s ruling says in no uncertain terms that the City of Fresno violated state law, he decided against issuing an injunction against city officials doing the same thing in the future. 

“Because there has been no Budget Subcommittee formed since the cease and desist letter has gone out (in September 2023),” Whalen wrote in his ruling, “the court, at this point, finds it unnecessary to mandate the City of Fresno provide an unconditional commitment they will not violate the Brown Act in the future.”

At the last hearing in the civil case back in March, Whalen directly questioned the need to issue an injunction or even get a commitment from city officials that they wouldn’t violate state law again in the same way. 

Right now, it’s unclear if the City of Fresno will appeal the court loss.

But what is clear is that annually convening a committee to negotiate a city budget — all behind closed doors — is against California law. 

And the city’s elected leaders, several of whom are currently campaigning for higher offices, have yet to reveal how much public money they spent fighting for an illegal process that they quietly changed but continued to defend for years after Fresnoland’s investigation.