The St. Helena City Council will consider rescinding its controversial land deal with Dennis Hunter at its next regular meeting tomorrow.

The action comes in response to a letter from St. Helena’s John Milliken charging the city violated the Brown Act, the state’s open government law, and didn’t give the public an opportunity to comment on the flood project-related property agreement before it was approved by the council during an Oct. 1 special meeting.

The deal, reached after more than two years of closed-door negotiations, involves two pieces of property: a city-owned parcel next to Vineyard Valley Mobile Home Park and an adjacent property owned by Dennis Hunter. Under the terms of the agreement the two lots would be reconfigured to allow the city to build a levee as part of next year’s flood project.

The land swap would leave Hunter with 17 acres of residential-zoned land behind the levee. He would also receive $899,500 from the city.

Milliken took his concerns to the office of Napa County District Attorney Gary Lieberstein.

“Based on his contact and other information he forwarded us, we are conducting an investigation,” said Lieberstein on Tuesday. “We will ultimately make a determination whether or not we think there is a violation, and if so what the remedy is.”

City Manager Bert Johansson said on Monday he met with an investigator from that office and gave him information about the process the council used to reach the property agreement.

In a Nov. 28 letter to the city Milliken alleged the city violated the Brown Act in three ways: by approving the agreement during a special meeting, not posting a notice on their closed session agendas that the city-owned parcel was part of the negotiations, and neglecting to report promptly the council’s action.

Milliken requested that the city rescind the agreement, place it on a future agenda, and re-do it based on public input. If the city doesn’t take those actions, Milliken said he’d press the district attorney’s office to prosecute the alleged Brown Act violations.

City governments are allowed to conduct private property negotiations in closed session, but Johansson has said the city could have done a better job keeping the public informed.

At the Nov. 18 planning commission meeting, when commissioners were discussing the lot line adjustment that’s part of the Hunter agreement, Johansson said it would have been wiser to approve the agreement at one of the council’s regular meetings.

On Tuesday he said he wasn’t willing to admit the city violated the Brown Act unless an attorney told him so, but he conceded that Milliken’s strongest point was that the city-owned parcel — known to flood project insiders as “the remnant” — was never included on the council’s closed session agenda, even though it was part of the negotiations.

Some members of the public were aware that the remnant was being discussed, but that was no substitute for including it on the closed session agendas, said Johansson.

“One of the things Milliken can demand as a cure for the alleged Brown Act violation is that we have an open discussion,” he said. “Instead of fighting about it, let’s just have that discussion.”

On Dec. 9 councilmembers will consider rescinding the Hunter agreement. If they do rescind it, they’ll hold a public discussion to gather input about it. The council could then approve the agreement, modify it, or continue it to a future meeting.

If the council doesn’t rescind the agreement, or if it rescinds it and then approves it after a public discussion, councilmembers will consider the lot line adjustment that’s part of the deal, as well as the flood project’s bid documents.

Lieberstein said that if the council does rescind its action and invite the public to comment on the issue, that “would be factored very strongly” into his office’s final decision.쇓