.
.
.
My first glance at the news this morning was a story about alleged legal violations by the City Council of the City of Costa Mesa of California’s requirements that government be conducted out in the open. This story highlighted an increasing battle over the intent and purpose of the California’s open meeting laws.
Attempting to end gamesmanship and “smoke filled back room deals,” California adopted an “open meeting law” called the Ralph M. Brown Act in 1953. This act was in response to various local cities and public agencies that were pulling all sorts of stunts to avoid public scrutiny of their decisions. My favorite involved a Southern California City that held a hearing on Catalina Island on a particularly controversial measure. It proved difficult for the grass roots opposition to rally the troops to the island in time to oppose the measure which was passed with little audience. The bigger problem was the “pre-meetings” held by public agencies where real discussion of measures took place behind closed doors with no public audience and no press coverage rendering the real “vote” little more than a meaningless charade.
The intent of the Brown Act was to require 1) adequate public notice and descriptions of decisions to be made by public agencies, 2) that the hearings actually take place within the jurisdiction of the public agency, and 3) that the discussion and consideration of matters be conducted out in front of the public at these properly noticed and properly located meetings. Unfortunately the application of the Brown Act has grown as complicated as our tax code and I think that it should be scrapped and replaced with an updated act closing the many loopholes that have allowed an increasing amount of public business to take place outside of public scrutiny.
What are the problems with this seemingly simple and well intentioned Act? Unfortunately they are legion and creative public agencies are finding new ways to “get around” them every day.
The “Committee”
The news out of Costa Mesa this morning is that the City Council had created a number of committees that have been meeting outside of public view. Believe it or not, that is not automatically a violation of the Brown Act. Committees are allowed to meet privately under exceptions to the Brown Act as long as they contain less than a majority of the elected board and are created for temporary or “ad hoc” recommendations. The theory behind the committee exception is that if less than a majority is meeting and they are merely making recommendations to the rest of the elected board or council about non-recurring issues it is “no harm no foul.” Needless to say some public agencies (like the accusations pending against Costa Mesa) have pushed these exception to (or beyond) the limits.
In Costa Mesa, the City Council created five two-member working groups this year: Economic Development; Sports and Recreation; Policies, Procedures and General Plan; Budget and Capital Improvements; and Motel Issues. Councilman Jim Righeimer said the groups were temporary, not standing. “The only one that had anything going on was Budget, and that final report is coming on the 17th” of May, Righeimer said. Couple of problems with Mr. Righeimer’s statement, 1) none of those five committees sound either “ad hoc” or temporary – all are recurring ongoing issues, and 2) the fact that only one of those committee “has anything going on” is still more evidence that these are standing committees not brought together for a temporary purpose.
The Seriatim Meeting
Probably the biggest area of violation in the Brown Act is the “non-meeting meeting” much like the game telephone we played as kids. One City Council member talks to another City Council member who talks to another and suddenly you have conducted the entire meeting outside of public view. A common corollary to this violation is the City Manager or similar staff member talking to a majority of the City Council individually to “informally poll” their opinion. Technology has also created new Brown Act problems as sending a series of emails out to various City Council members about pending business is another way of conducting secret meeting. The email violations can even happen more easily and accidentally when conversations with one elected representative are attached to an email forwarded to another elected official – as soon as a majority has received the communication, you have a Brown Act problem.
I have witnessed this seriatim meeting first hand – when a city council hears a complex development or contract issue, asks no questions, has no discussion with the exception of mysterious comments when one council member turns to the other and says “remember that thing” and suddenly heads nod and a unanimous vote is made (real case I saw in person). Some of the more diabolical methods of intentionally evading open meeting laws are only discovered through the stupidity of the perpetrators. There was the infamous meeting where a City Council member was in an ongoing “live chat” with the applicant developer during the hearing (obviously allowing a major part of the discussion to take place outside of the public ear) that was only discovered when a reporter happened on to the live chat and reported it to the City Attorney.
The Inadequate Description
Obviously open meeting laws work if the public is properly informed about what is to be discussed. A classic way to reduce public participation is for a public agency to give an inadequate or misleading description of what is being considered. “Proposed Zone Change” without a description of the impacted property so that neighbors can evaluate a projects’ impact would be a classic example of this kind of violation.
Inadequate or misleading descriptions are actually far less common than the violation of the committee or seriatim meeting rules for a simple reason – you can compare the language of the agenda and compare it to the action that is taken. Much easier to prove that kind of violation than to prove that three city council members met in public.
The Recommendation
The above reflects only a small fraction of the problems with the Brown Act and erodes public confidence in the democratic system. The Brown Act has been around for 57 years and needs more than a face lift, it should be replace wholesale with tighter provisions that reflect technological improvements that have been made since man went to space.
I’m sure the good Mayor and others will jump all over this, but the City has stated that the intent of the Budget Committee was to address outsourcing issues. I know many of you won’t believe that, but unless there is evidence to the contrary, that would likely qualify as a proper topic for an “ad hoc” committee in compliance with the Brown Act.
I don’t disagree with you if the City’s characterization is correct. One of the main difficulties under these circumstances is that you have to take the committee members at their word that they are only discussing the “one time” issues and not going beyond that.
Geoff,
We agree on this, the Brown Act needs to be updated to restore its orginal intent that the public be informed in a timely fashion.
I favor keeping the process as transparent as possible, restoring the public confidence and the end result will likley be better government.
I’ve watched all these meetings closely and written about them extensively. I broke the story of the letter from California Aware that now has the Costa Mesa legal department scrambling. This is a pervasive problem in Costa Mesa, complicated by technology. It is not unusual seeing a council member texting while on the dais, supposedly listening to speakers and fellow council members. We don’t know just who that person is texting to, but another member seems to be frequently texting simultaneously – draw your own conclusion there. This is another way of side-stepping the Brown Act.
Potstirrer.
Mission Viejo just provided Apple I-pads to each council member that contains their meeting agendas. As such they can get email or text messages where someone on the dais or in the audience or 1,000 miles away watching the meeting from a computer can give instructions on how to vote or what arguments to make in support of or opposition to the proceedings. I suggested that one member place on the Agenda that no electronic devices, including Smart Phones, be present to avoid any misperceptions.
Further you are to stay awake and listen to your peers, as well as members of the public, as you conduct the city business.
There is no place for this hi-tech which can easlily be manipulated
Very nice piece Geoff.
Committees are great, and a tremendous boon to improving the quality of decision-making. It’s just that they need to be public if they are dealing with substantive issues. It requires a little more time and a little more planning, but it’s not that big a deal. I’m all in favor of adding additional members from the public to advisory committees if specialized knowledge is useful. There’s no way any Council member can stay on top of the entire range of issues that they make decisions about.
And I’ll add that there are plenty of improvements that can be added to the process of making public decisions in the public including the ability to offer publicly published comments on-line in advance, with staff responding so you can make points about an issue whenever it’s convenient. Government 2.0.
Texting and emailing from the dais is not only a violation of the spirit and letter of the open meetings law. It’s also downright rude.
Finally, enforcement of the Brown Act is a huge problem. It’s a weak law with uncertain enforcement. It needs some teeth, and some independent authority to enforce it.
Finally, and this is where the CUSD trustees and superintendent were dumb as a bag of hammers, public meeting and public record laws are a floor, not a ceiling. I have never seen a problem where the public has been harmed by having too much information. Government needs to protect personal privacy and protect its bargaining position when it’s negotiating, but other than that, open the doors and windows.
If a staff report is ready early, put it up on the website and start taking comments instead of waiting until the last minute.
Larry, there’s mumbling going on in Costa Mesa to also provide them with e-tablets of some type – I-pad would be the best. However, that just enables the problem – probably encourages it. It’s bad enough now with a couple guys with the attention span of a gnat!
Here is another Brown Act problem – Facebook and Twitter. It is possible to violate the Brown Act simply by a majority of a Brown Act board or council “following” “liking” ar “tweeting” when the subject of the post or Tweet is about official business.
Very good point.