At the start of the city’s March 14 council meeting, Cypress City Attorney Fred Galante made a surprise announcement.
Moments before, in closed session, council members voted 4-1 to ignore a legal demand that the town transition away from at-large elections.
Rather than divide into political districts to avoid an expensive lawsuit – a move most cities in Orange County have made when faced with the same choice – Galante said Cypress wants to keep its citywide voting process.
“The Council directed the City Attorney to respond to attorney (Kevin) Shenkman’s letter expressing that Cypress does not plan to change to by-district elections at this time,” Galante said.
Residents who came to the meeting to weigh in on the matter were left with commenting on a done deal.
“I’m a little taken aback,” said resident Katie Shapiro. “I didn’t realize this was going to a vote tonight. Once again, this is indicative of the lack of transparency on our city council’s part.”
Because the vote was taken behind closed doors, council members did not discuss their decision during the regular meeting.
Cypress Mayor Paul Morales during a Cypress city council meeting in Cypress on Monday, February 14, 2022. (Photo by Leonard Ortiz, Orange County Register/SCNG)
But in an interview afterward, Cypress Mayor Paulo Morales defended the closed-session vote.
“It’s frustrating to hear that we supposedly are making top-secret decisions,” Morales said. “We held public forums and considered the facts. It’s just that the vote was in closed session. That’s all.”
Was the vote legal?
Experts in municipal law, as well as leaders in other cities, said the behind-closed-doors vote was inappropriate and, perhaps, illegal.
“Legislative bodies do have certain limited rights to go into closed session to get legal advice,” said David Loy, legal director for government watchdog First Amendment Coalition. “But that does not mean they can make the ultimate policy decision in closed session. Otherwise, you could make just about every decision in closed session because just about everything a city does can get them sued.”
California’s Brown Act – or “Sunshine Law” – requires local governance to be conducted in plain view.
“Exceptions to transparency must be narrowly construed,” Loy said. “The public has the right to participate, to make comments before the vote, and to hear the opinions of their city council members.”
The sudden closed-session vote came six months after what began as a rather common occurrence. Like a dozen Orange County cities before it, Cypress received a letter from prolific Malibu attorney Kevin Shenkman claiming that the city’s at-large voting system violates the California Voting Rights Act (CVRA) by diluting the voice of minorities.
According to the 2020 Census, the racial and ethnic breakdown of Cypress includes 37% non-Hispanic White, 36.8% Asian and 18.7% who identify as Hispanic or Latino. None of the city’s council members are Asian-American.
Financial risk
In his missive, written on behalf of a Latino civil rights group, Shenkman notes that although Asians comprise one third of the Cypress’ population, they are routinely unrepresented on the City Council.
Fighting claims involving the California Voting Rights Act has proved costly and fruitless for those that try. For instance, Anaheim spent $1.1 million and Palmdale $4.7 million before eventually conceding to district-style elections.
It’s also true that in many cities people of color have been historically underrepresented in city politics.
So most cities switch to precincts rather than face off in court. And most city councils vote on the issue in public meetings, not in closed sessions.
“When we got the letter, we looked at other cities and we didn’t see anybody who fought and won,” said Los Alamitos Mayor Shelley Hasselbrink. “I would love to stick it to Shenkman, but at what cost?”
Hasselbrink said she was surprised by the Cypress council’s vote to dismiss the dreaded letter.
“Because the Cypress council members did this all in closed session, nobody understands their thought process. Why, exactly, did they believe they could avoid a lawsuit?” Hasselbrink said.
Last August, Tustin, too, voted to ditch at-large elections. In Tustin’s case, the request came in a letter from the Mexican American Legal Defense and Educational Fund.The group noted that even though 29% of Tustin residents identified as Latino, only one Latino had been elected to city council over the previous 20 years.
“We looked at institutional information to see if we could come up with a counter argument and found that history was not in our favor,” said Tustin councilwoman Letitia Clark, who was then the city’s mayor. “We determined that fighting this would not be a smart way to spend taxpayer dollars.”
Clark likewise wondered why Cypress voted on this issue in private.
“Obviously, litigation can be discussed in closed session,” she said. “But it’s absolutely the best practice to have the vote in open session. This is something that literally impacts every voter.”
Cypress took a different approach from sister cities in another way, as well – paying a consultant $40,000 to organize public forums in advance of a council vote.
Survey, workshops
Typically, cities foot the bill for public workshops after agreeing to implement voting districts. The legally required seminars allow residents to assess several potential maps drawn by demographers to create balanced representation.
“We wanted to educate the community and get their input,” Mayor Morales said about the Cypress forums.
The city hired Communications LAB consulting firm, headed by Orange City Councilwoman Arianna Barrios, to create a questionnaire asking residents how they feel about district voting. But the results of that survey were not published until after the council’s vote.
When speakers at last week’s meeting complained that they had not seen the data yet, City Manager Peter Grant said his staff experienced technological glitches trying to post the survey online.
The city, with a population of about 50,000 people, had “disappointingly, only about residents 150 respond” to the survey, Grant said, adding that about 10% more respondents favored at-large elections over districts.
Cypress City Manager Peter Grant, left, during a Cypress city council meeting in Cypress on Monday, February 14, 2022. (Photo by Leonard Ortiz, Orange County Register/SCNG)
The city did not inform consultant Barrios in advance of the March 14 meeting that it would forge ahead with a decision. When reached for comment a week after the vote, Barrios expressed confusion and suggested the council had only discussed the lawsuit in closed session.
“I would be highly surprised if they voted,” Barrios said. “They will vote after the public process of deliberation.”
Morales conceded that the city had neglected to keep its consultant in the loop.
“She is not a part of the decision-making process,” he said. “Yes, we could have put this off. But what are we waiting for?”
Attorney Shenkman speculated that Cypress council members held the forums to justify a preordained vote. “When they waste millions of taxpayer dollars fighting a lawsuit, they can say, ‘Our constituents wanted us to,’” he said.
Hasselbrink pointed out that when it comes to state law, opinions and polls don’t matter. “Even if every single resident had told us, ‘We don’t want to go to districts,’ we still would have gotten sued,” she said.
Districts offer mixed bag
As is the norm for a town of its size, the majority of Cypress council members are neighbors who already knew one another before their elections. District-style voting can pit friend against friend running for a single seat.
Many in city government, including Hasselbrink, also argue that districts can make council members too focused on their own back yard rather than the city as a whole. And tiny districts in small cities don’t always attract enough candidates for a robust election.
Still, districts do offer some advantages.
When Orange received a challenge letter in 2019, Barrios said, “I was really against the district system. All council members should answer to all voters.”
But she soon discovered a silver lining. “I can tell you that being in a district has made me closer to my constituency,” Barrios said.
Another plus: “You do not need to be well-funded to run for office,” she said. “Districts are made to be walkable.”
Indeed, precincts can diversify councils not only ethnically and racially, but also socioeconomically.
“Council members tend to live in a few select neighborhoods,” said demographer Justin Levitt. “Certain neighborhoods are chronically underrepresented, including those with higher levels of apartment housing. They become the dumping ground for undesirable policies required by the state, such as affordable housing developments.”
Levitt, who specializes in drawing precinct maps for California municipalities, predicted that people ultimately will become comfortable with districts.
“The benefits of the at-large system are ingrained in our local political culture,” he said. “I’m sure the newer generations will have a different attitude.”
For the time being, however, cities often make the shift to district elections reluctantly or, as did Cypress, even refusing.
“The narrative in recent years has been that if you got a demand letter, you really had no other option but to comply,” Levitt said. “But now we are seeing a wave of resistance.”
Irvine has yet to concede to Shenkman’s 2021 demand letter, claiming that the city is integrated and its council already representative.
Whatever argument Cypress might offer, Shenkman said, “It can expect a lawsuit.”
But first, Brown Act expert Loy said, Cypress may need a redo on its vote – this time, in a public setting.
“An action not in compliance with the Brown Act can be declared null and void,” Loy said. “Residents can demand that the council go back and do this in open session.
“Citizens have the right to hear why elected officials vote the way they do,” Loy added. “It’s the oxygen of democracy.”