Daily Journal, Los Angeles

2/18/04

First Light/Opinion

MEDIA PIERCES THE SHIELD OF GOVERNMENTAL INSCRUTABILITY

By Richard McKee
        
        Fighting public agency secrecy just got a little easier with the Los Angeles Times successfully winning appeals against the Los Angeles County Board of Supervisors for violations of the Ralph M. Brown Act against government secrecy. Los Angeles Times v. Los Angeles County Board of Supervisors, 2004 DJDAR 1336 (Cal. Feb. 4, 2004).
        The Brown Act, of course, serves to facilitate public participation in all phases of local government decision-making and to curb misuse of the democratic process by secret legislation of public bodies.
        Regardless of the openness candidates avow while courting votes, many newly elected officials quickly recognize upon taking office that political agendas are more easily realized the longer important details are kept from the public. And soon there comes a time when our representatives must confront a significant choice that will frame their public life: to legislate openly or secretly.
        About two years ago, the Los Angeles County Board of Supervisors faced precisely such a choice. It came after enough signatures to place an initiative on the ballot that would ensure more substantial compensation in the future.
        But members of the governing body of this state's largest local government didn't like the idea of losing control over that part of the county's budget, and supervisors believed taking power from officials elected to make budgetary decision was unconstitutional. So they asked County Counsel Lloyd W. "Bill" Pellman to seek an outside legal opinion assessing the chances of a court challenge to the initiative before it was on the ballot.
        On Dec. 18, 2001, the board held an anticipated litigation closed session (Government Code Section 54956.9(c)) to hear from Pellman on outside counsel's conclusions and to set the litigation into motion. But the opinion proved pessimistic, and the board's discussion soon strayed into other alternatives, according to minutes of the closed meeting.
        County counsel then suggested the board consider an illegal method to stop, or at least delay, the initiative. If Pellman were to refuse to perform his statutorily required duty to submit the ballot title and initiative summary to the registrar of voters (Elections Code Section 9105(a)), the initiative would not appear on the upcoming ballot, and the health care aides would have to spend time and money suing the county to protect their constitutional right to exercise initiative power.
        The board liked the idea, and four of the five (Zev Yaroslavsky was the lone dissenter) secretly voted to direct Pellman not to perform his required duty. That's right, the Board of Supervisors, aided and abetted by its own legal counsel, secretly conspired to violate state election laws and trample the civil rights of employees.
        But the story gets even better. When Pellman returned to his office with the news, he was apparently greeted, presumably by his deputies, with the realization that his refusal to perform his ministerial duty was sure to bring a very costly lawsuit. So he decided to try to reverse the decision.
        The next day, Pellman called Supervisors Mike Antonovich, Yvonne Burke and Don Knabe, asking for understanding and their OK to reverse the decision, according to court records. And once having gotten a majority of the board to agree, Pellman filed the ballot initiative's title and summary on time.
        But Pellman's problems weren't yet over. He had ended his phone calls once he had collected a three-vote majority, according to court records. He failed to call Gloria Molina, the fourth vote supporting his idea the day before. When she learned of his calls, she characterized them as an illegal serial meeting and demanded that the board direct county staff to formulate policy changes to keep such a violation from happening again, according to documents obtained by the Los Angeles Times.
        The Times got wind of it all and requested copies of the county documents to prove it. The county refused to produce those documents, but accidentally sent them to The Times anyway. The Times published the information along with a story about how most of the board's decision-making is done in secret, through private meetings of the supervisors' deputies. The Times dubbed these meetings those of a "shadow board."
        Despite the publicity, the supervisors claimed they had done nothing wrong, changed their rules so no discussion minutes would ever again be taken in closed session (it was these minutes that produced much of the fodder for The Times' revelations) and asked the district attorney to investigate.
        In just a few weeks, District Attorney Steve Cooley appeared and gave the board happy news: His office's investigation showed that neither the board nor its counsel had done anything wrong. Cooley's appearance before the board was on the same day he appealed to the supervisors to add millions of dollars to his office's budget.
        Civic activists were appalled, but Los Angeles County, with a $16 billion annual budget, isn't a governmental entity one legally challenges blithely. And open-government advocates rarely possess the necessary resources to judicially engage a public body willing to spend hundreds of thousands of our tax dollars to cover their open government misdeeds.
        Yet, without blinking an eye, The Times stepped up to the plate, employing the Los Angeles office of Davis Wright Tremaine to file a lawsuit against the supervisors for violating California's open meetings law, the Ralph M. Brown Act. Los Angeles Times v. Los Angeles County Board of Supervisors, BS075075 (L.A. Super. Ct., filed March 29, 2002).
        At the first hearing in Department 85, Los Angeles Superior Court, the county asked Judge Dzintra Janavs to seal the records it had inadvertently released that proved the Brown Act violations of the Dec. 18 closed session. It also asked that the closed session minutes of Jan. 4 and 8, 2002, be accepted under seal. But in her thorough review, Janavs recognized violations The Times hadn't even alleged and ordered the records released.
        In her July 3, 2002, declaratory judgment for The Times, it was Janavs' opinion that the three violations by the board were unlikely to reoccur. She noted the board had changed its closed session rules so an item could not reach the agenda without the board president and Pellman agreeing it was authorized by the Brown Act.
        She also indicated her feeling that The Times' motive in bringing suit was to secure headlines and not primarily to protect the public's rights. As a result, she embraced the county's argument that, even though The Times had prevailed, in these special circumstances no writ of mandate should issue nor should the paper recover its attorney fees.
        An unqualified victory for openness had come at a very steep price.
        The board accepted Janavs' declaration they had violated the Brown Act on three separate occasions, but The Times successfully appealed to recover legal costs.
        In its reversal of the lower court case, the 2nd District Court of Appeal unanimously disagreed both legally and factually with Janavs, ruling that the lower court had abused its discretion when it found the lawsuit to have been unnecessary, there had been insufficient injury to the public and that a grant of attorney fees had not been necessary to attract competent counsel. Los Angeles Times v. Los Angeles County Board of Supervisors, 112 Cal.App.4th 1313 (Cal. App. 2nd Dist. Feb. 4, 2004).
        In criticizing the board's practices of illegally using closed sessions, failing to list items of business on its agendas and not reporting actions taken, Associate Justice Laurence D. Rubin, writing for the panel, reiterated the court's observation in Epstein v. Hollywood Entertainment Dist., 87 Cal. App.4th 862 (2001). "The [Brown] Act thus serves to facilitate public participation in all phases of local government decision-making and to curb misuse of the democratic process by secret legislation of public bodies."
        Rubin found that the supervisors had never admitted nor remedied their violations, and that their actions had been endorsed by their counsel and the district attorney. Thus The Times lawsuit had been necessary to protect the public's right to open government. The court also found that the board's new protocols for agendizing closed session items "was deficient because it still relied on Pellman's advice to determine whether the Brown Act applied." The Court of Appeal said the lawsuit served to benefit the public by "clarifying the scope of the Brown Act's initiation of litigation exception."
        And finally, Rubin wrote that neither the board's good faith effort to defend itself nor The Times ability to pay for competent counsel should have been used as a special circumstance to deny attorney fees.
        The board appealed the appellate ruling to the state Supreme Court (S121065), which denied review and denied the county's request that the lower court's ruling be depublished.
        Let stand was the appellate court's finding that the private attorney general statute, CCP Section 1021.5, is analogous to the Brown Act's fee provision, Government Code Section 54960.5, whereby an award of attorney fees is appropriate if a significant benefit was conferred upon the general public and necessary litigation produced a financial burden on the private party plaintiff. A denial of fees would be unusual and only appropriate when a public agency defendant proves special circumstances.
        This is an obvious benefit to any member of the public who challenges illegal secrecy used by a city, county or school district, only to have that local agency's officials respond that they're doing everything correctly. With litigation left as the only remedy under the Brown Act, the cost of a lawsuit can easily make defending your right to open government prohibitive.
        But The Times case ensures there will be pro bono attorneys who will take on legitimate cases now that the 2nd District has assured fee recovery to victorious plaintiffs in the great majority of Brown Act cases.
        This Los Angeles Times-Davis Wright Tremaine victory also will serve to make every local elected official think twice before using illegal secrecy for fear of facing the embarrassment and political consequences the loss of a Brown Act suit inevitably brings.
        Incidentally, Pellman has decided to retire next month and the Board of Supervisors has agreed to pay The Times its requested $116,000 in attorney fees.
        
        Richard P. McKee is immediate past-president of the California First Amendment Coalition, co-plaintiff with The Times in this case, and a professor of chemistry at Pasadena City College. First Light is a monthly column by coalition members.