Atwater city clerk throws himself into City Council infighting over Brown Act claim

The Atwater seal as it appeared Thursday, Dec. 15, 2016, in the council chambers.
The Atwater seal as it appeared Thursday, Dec. 15, 2016, in the council chambers.

A candidate in Atwater’s contentious City Council race, who is also the city clerk, has asked the state Attorney General to weigh in on recent actions of the council.

Atwater’s City Attorney Doug White confirmed this week he will be forwarding evidence of a potential Brown Act violation by Mayor Jim Price and Mayor Pro Tem James Vineyard to the Merced County District Attorney’s Office and grand jury.

City Clerk Don Hyler III has since announced he’s formally asked the state’s Attorney General to look at the process, and confirm it was done properly. Hyler said he has questions on whether a closed session vote to release texts and emails of the potential Brown Act violation was enough to allow the attorney to forward them on to prosecutors.

No vote on that action has ever appeared on an agenda, he noted. Hyler is also facing off with Councilmember Brian Raymond for the newly established District 4 seat.

Hyler said Thursday that he has “two different hats” as a candidate and the city clerk.

“I have no ulterior motives here. I’m just trying to do the job that I was elected to do as the city clerk,” he said. “There’s no personal vendetta one way or the other. I see some processes that are concerning to me.”

Raymond said he doesn’t buy it.

“I was actually disappointed in Don. I never thought he’d be running for office to help his friends and cover up criminal activity,” Raymond said. “It’s unfortunate that in this he appears to be advocating for less, not more transparency, and less accountability.”

Hyler insists it is possible to remain an unbiased city clerk while running for election to the council. Councilmember Cindy Vierra said this week she wanted the messages forwarded to prosecutors and the grand jury.

“This (news) release is not focused on Mr. Raymond or his opinions,” Hyler said. “In fact, my concerns are only that City Attorney White and Ms. Vierra are acting within the direction of the entire council as a voting body. And, also, that the agendas properly reflect the entirety of the city’s business.”

White said the city has followed proper procedure in turning the allegations and evidence over to prosecutors and the grand jury.

“I’m 100 percent confident — actually being an attorney and understanding the law — that everything that we did is correct and conforms with the law,” he said. “I think these are part of the silly things that happen when you get close to election time, and particularly when you have a city clerk who’s running for political office.”

The council voted to release the messages and emails in late September. Regardless, no vote is necessary for the attorney to forward potential criminal evidence to the DA’s office and grand jury, White said.

The messages come from December, when the City Council was discussing whether to hire Art de Werk, who eventually got the city manager jo but stayed on for just about three months before leaving. He cut ties with the city after receiving a profanity-laced text from Price, according to an agreement that settled his “hostile work environment” claim.

In one thread of the messages in question, Price shared an early draft of de Werk’s contract before the councilmembers had even seen it, the texts show. The contract went to Police Chief Samuel Joseph, a Merced Sun-Star editor and some Atwater residents, according to the released messages.

In another text, Vineyard relays closed session information to Joseph and laughs about telling the chief to lie about where he got it, followed by: “lol.”

Atwater City Council, when voting on high-ranking city jobs, has been split into to two camps in the past couple of years. Price and Vineyard have often landed in the minority across from Raymond, Vierra and Councilmember Paul Creighton.

Hyler said he doesn’t fit into either of those camps. “People have tried to put me in one of those camps and it doesn’t really work for me,” he said. “I’m friends with all of them. ... I’m happy to be the man in middle.”