TALK BACK - Speaking for the reporters, gadflies and others who Ventura City Manager Rick Cole says "worship" the Brown Act (CityWatch-"Sunshine on the Sunshine: What’s Really Wrong with California’s Landmark Open Meeting Law"), I offer a few corrective comments.
• It's true that, as Mr. Cole says, the League of California Cities drafted most of the Brown Act's original language, but the preamble that he admires for its "original straightforward eloquence" was written by Michael Harris, the San Francisco Chronicle reporter who wrote the 10-part series which showed the need for a general open meeting law.
And the League was not the sole sponsor; equally forceful in urging Ralph Brown to carry the legislation and Governor Warren to sign it was an association of editors within the California Newspaper Publishers Association.
• In fact the role of the League's lawyers in drafting the law's original public meeting access rules was probably to see that they were limited. That has at any rate been the League's principal role since then—leading the cadre of local government agency lobbyists in Sacramento in resisting newspaper-led efforts to block evasions of the statute.
It has been the interaction of those trying to plug such loopholes and those trying to preserve or even extend them that has led to the length of the current Brown Act that Mr. Cole complains of.
If you compare, for example, the original version of the pending Brown Act amendment bill SB 1003 (a one-word addition introduced by the newspaper publishers to allow a court to determine if the law applies to a controversial past action of a local body) to the current version resulting from resistance to that mild change, the result would be a government-lawyer-drafted addition of more than 1,200 words to the law.
• The defense of the out-of-town retreats formerly used by contentious local councils, boards and commissions for "team-building" therapy by taxpayer-funded consultants—banned by the Brown Act in the 1990s—is curious.
If the people the community elects to govern them can't grow up and behave responsibly together in collective deliberation in the public eye, that's a fact the voters need to know and correct at the ballot box, not one to be addressed by civility coaches at remote resorts. And team-building can be code for discouraging healthy dissent.
• Calling the provisions of the Brown Act suspended by the Legislature in the recent budget adoption "relatively trivial" and "inconsequential" is seriously misleading. Of course local bodies won't stop posting agendas for their meetings; that has never been the real risk. But the problems for which there are now no legal remedies include, for example:
1) Ambush actions: Proposals put into effect at a meeting that were not on the agenda at all, where there is no real urgency in adopting them.
2) Incomprehensible agendas: The use of legalistic or bureaucratic code to mask the real nature and effect of a proposed controversial action.
3) Misleading/mislabeled actions: Proposal A is listed on the agenda, but what's addressed is Proposal B. A vivid example: last fall the Los Angeles County Board of Supervisors met at least twice with Governor Brown in closed session to discuss his transfer of state prisoners to local jails. The sessions were listed on the agenda as dealing with threats to the security of public buildings and other infrastructure, a label that not even the Governor took seriously and was declared a violation of the Brown Act by District Attorney Cooley.
CalAware sued, and in settlement got the Board to concede that the listing was false and to pledge not to repeat it and to release transcripts of the closed session. If the agenda mandate had been suspended then, no such resolution would have occurred because posting a misleading agenda would have been no violation of the law and not a matter the court could correct.
• Finally, the article refers to "a threat by a State Legislator to (wait for it) launch an initiative to enshrine all the complicated provisions of the Brown Act in the California State Constitution." This statement could hardly be more inaccurate. It refers to Senate Constitutional Amendment (SCA) 7 by Senator Leland Yee of San Francisco.
SCA 7 has nothing to do with an initiative. As an act of the Legislature it would directly place on the next statewide ballot for voter adoption an amendment adding just one short sentence to the state constitution: "Each public body shall provide public notice of its meetings and shall publicly disclose any action taken." Doing so would create an enforceable obligation that the Legislature could not suspend.
SCA 7 has been supported by unanimous and bipartisan votes all the way through the Senate and through the policy committee in the Assembly. But for almost a year it has been sidelined in the Assembly Appropriations Committee on the pretext that the paperwork to place such a proposition on the ballot would cost too much.
My organization, Californians Aware, has launched a petition on Change.org urging the committee to release SCA 7 and allow a vote of the people. Let's hope the Brown Act worshippers rally to add their names.
(Since 1980 Terry Francke has been helping journalists, citizens and public officials understand and use their First Amendment, open government and public information rights. Francke and his daughter, Emily, founded Californians Aware in the spring of 2004. The idea setting this nonprofit, nonpartisan public interest organization apart is that working with public-spirited citizens, journalists and government officials and employees at the same time can effect a change in the overall landscape, and improve the public trust while also making openness more convenient for those at the gates. Francke previously served 14 years as executive director and general counsel for the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association. He can be reached at: calaware.org)
-cw
CityWatch
Vol 10 Issue 60
Pub: July 27, 2012