What are our elected city officials being taught at League of Cities retreats?

Aside from the modest cost of registration, travel, meals, hotels, etc. have you ever been curious as to what our elected officials are being taught at the League of Cities retreats they attend in places such as the lovely seaside town of Monterey, CA? I am sure the latest outing promoted the League’s version of private property reform, without offering an opposing rebuttal, but that’s not the main thrust of this post. The following text is taken directly from the CFAC wesbsite:

The source of this text is from CA First Amendment Coalition www.cfac.org
Note: Almost 10 years ago I listened to the audio tape and have a printed transcript of this 1998 League of Cities presentation comments.

“City Officials’ Ethics Session Finds Open Government Good – For Laughs

Is self-government a joke? At a midsummer gathering of city council members and other municipal officials from around the state, a city attorney for six California cities drew laughter from the audience when he asked: “Hey, does anyone here give a real damn about the Brown Act?”The Ralph M. Brown Act is the state’s open meetings law for local agencies such as cities, counties and school districts, requiring that public officials conduct the public’s business in public, at accessible open meetings preceded by posted agendas.

But speaker James L. Markman, of the Los Angeles law firm of Richards, Watson and Gershon, said that he is often called upon as city attorney to devise clever ways to allow officials to conduct public business behind closed doors.

“I’m more often and much more often asked to devise ways to get into executive session that are very clever, if I possibly can,” he said.

Markman made his remarks in a presentation to the League of California Cities’ Mayors and Council Members Executive Forum, held July 22 in Monterey and described on the League’s Web site as designed “for elected officials and staff interested in cutting-edge approaches to challenges facing cities.”

The title of Markman’s presentation was “Ethics in City Hall: Practical Answers for Tough Situations.”

Many California cities do not have a city attorney on staff, but instead contract with attorneys in private practice to serve as counsel. Markman is such an attorney and, he said, his willingness to help officials get around the Brown Act was a persuasive factor in at least one city’s decision to hire him.

“I found out later on that, during the interviews, one of the reasons that I picked up the account was that I told them I could be very clever about circumlocuting the Brown Act, if that’s what they want,” he said, again drawing laughter. “And I can be very clever about circumlocuting the Brown Act.” He cited the closed session to discuss real property negotiations as offering many possibilities, given the elasticity of the term “real property.”

The gist of Markman’s comments was that the Brown Act is a nuisance to which public officials often pay little regard.

“For example, does anyone here really believe that the only time council members discuss issues of interest in the city is at, at open council meetings and even in executive sessions?” he asked, commencing a series of rhetorical questions.

“Does anyone here think two councilmen or three haven’t committed to go a certain way on an issue other than at a council meeting? Whether they’re at coffee or they’re having phone calls?”

According to Markman, the Brown Act’s requirement that public officials conduct their business in public simply does not comport with the way government business gets done. He faulted the Brown Act — not the undemocratic abuses of government power it was intended to reform – for its failure to be taken seriously.

“We’ve written the Brown Act in such a complex way, it’s hard to believe anybody cares about it,” he said.

Markman noted that the Brown Act was not always so complex. As originally enacted in 1953, he said, it simply required that elected officials discuss and vote on issues in public. Over the years, new requirements were added to the Act, which Markman described as getting “worse, and worse, and worse based on a lot of legislation generated by the newspaper lobby.”

From Markman’s perspective, an example of the worsening of the act is the requirement that public bodies post agenda notices three days in advance of meetings so that the public is alerted about what will be discussed. This requirement was added to prevent officials from adding potentially controversial items to the agenda at the last minute in an effort to slip them by the public unnoticed.

Markman told his audience of city officials that they have little to fear in the way of formal punishment for violating the Brown Act. Although the Act provides that criminal misdemeanor charges may be brought against officials who break the law, in the 45-year history of the Act criminal charges have been brought on only three occasions, and none of these resulted in a conviction.

The real jeopardy posed by the Brown Act, Markman said, is that a political opponent, an uncooperative member of the same council or board, or a local newspaper might make an issue of it. Such political damage can be particularly troublesome because the public is so unsophisticated that it views violations of the Brown Act as a serious matter, Markman said.

“For all they know, that’s child molestation,” he said, to renewed laughter. “They don’t know what it is.”

COMMENT: In this presentation the League, which has consistently opposed efforts to make enforcement of the Brown Act more realistic, was sending its members a message about a law it felt to be worthy of contempt. What appears new here is not the message but the fact that, despite a chuckling comment heard on the tape about turning the recording off, the talk was preserved intact for the benefit of League members who couldn’t attend the session that day. Mr. Markman is a seasoned professional from the mainstream of city attorney ranks. He was chosen as an ethics expert on observance of the Brown Act not because he is a renegade on the subject but because his views are very representative of how many local agencies are guided by their lawyers.

This is the most candid picture ever presented of government lawyers’ and managers’ attitudes toward the Brown Act and its observance as a matter of ethics — which someone has referred to as what guides your behavior when no one is watching. If this is said on the record of an official League conference, one can imagine how local groups comport themselves in closed session — when no one is watching.

NOTE: The League-authorized audio tape recording of Markman’s presentation was made by Five StarConference Recording and Duplicating in Carlsbad; phone number 800-350-8273. The full text of Markman’s comments regarding the Brown Act can be found on CFAC’s web site, at www.cfac.org.”

While I have shared this presentation in our city some years back, it is worth sharing with a broader audience so that you can recognize how much scheming goes on when we are not present. And no, while I have attended their local meetings I have yet to show up in Monterey to record what is truly going on. Some elected’s are quick to justify attending these retreats and say they were “networking” at the meetings. A valid word. And in many cases a valid statement. However, let’s peel the onion back a little further. Who attends the dinner and evening social events that are not sponsored by your city? Thin
k about who picks up the tab for that “networking” opportunity with a captive audience of elected officials whose hands on on your city’s checkbook.

What’s your thoughts about attorney Markman’s approach to the open meeting law?

Do you trust your elected officials representing your interests at these League retreats or is their focus on special interests?

Do not ask them for their golf scores. The fact that they got a hole in one at Pebble Beach during the day cannot be reported as they were supposedly in class!

About Larry Gilbert