Stories (1997):
Open Meetings

 

January

February

March

April

May

June

July

August

September

October

November

December

 

 

 

April

 

Citizen's Lawsuit Challenges Closed Door Approval of Superintendent's Buyout

Does this sound like a familiar scenario? A local government chief executive (city manager, superintendent, special district manager) is not meeting the expectations of his or her collective employer. Or maybe vice versa, or maybe both. Relations with the council or board are not what they should be, and finally all involved acknowledge the irreconcilability of the differences and agree to a civilized separation: no soiled laundry-airing, no lawsuits, just a buyout and a walk away. But the fact of the buyout, and the amount of funds spent to smooth it, are news to the public - announced only after the deal has been done behind the scenes and approved in closed session.

A not uncommon occurrence across the state, but for once an offended member of that public-caught-by-surprise is doing something about it. Richard McKee, a La Verne resident who teaches chemistry at Pasadena City College, has filed suit against the Chino Unified School District. He alleges that a three-member board majority violated the Ralph M. Brown Act when in December, with no notice to the public and based on discussion only in closed session, they approved a nearly $173,000 separation payment to buy out the contract of Superintendent David Alvarez.

McKee, who in 1995 was awarded the California First Amemdment Coalition's Torchbearer recognition for his singlehanded court efforts to assert the public's right to know, is not a lawyer and is representing himself. But he feels the law is plainly on his side, since the Brown Act prohibits taking action on compensation in closed session, and requires the topics of closed sessions to be accurately noted on the posted agenda. In this case, he notes, the closed session was simply labeled as a "performance evaluation" of the superintendent, and since 1994 the Brown Act has prohibited action on or even discussion of compensation in closed door evaluation sessions. McKee says the net effect was to deprive district parents and taxpayers the opportunity of informed comment - prior to official action - on the termination and the amount paid to lubricate it.

As remedies, he asks the court to use one sanction sharpened within the Act in 1994: declare the buyout null and void, despite the agreement to pay. He also asks, as a new remedy added in 1994's revisions of the law, that the board be ordered to tape record its closed sessions in the future. A final unusual note: two of the witnesses McKee may call in the April 11 hearing in the case - and who have said they are willing to testify - are the two district trustees who refused to sign the buyout, who agree with McKee that the matter was handled with illegal secrecy (McKee v. Chino U.S.D., San Bernardino Superior Court Case # RCV 26430).

Back to top

 

 

May

 

Public Broadcaster's Federal Funding on the Line for Lack of Sunshine?

Pacifica Foundation, the nation's only public radio network, headquartered in Berkeley and with two of its five stations in California, may face the loss of its federal funding if it does not provide more public access to and information about its board meetings.

A report issued April 9 by the office of the Inspector General of the Corporation for Public Broadcasting (CPB) concludes that on too many instances in the past, the Pacifica board failed to provide reasonable notice of its meetings to the public, confine closed session discussions to topics of legitimate confidentiality, and provide written explanations of the reasons for closed sessions. Moreover, says the report of CPB Inspector General Armando J. Arvizu, the individual stations' local advisory boards "were not being allowed the autonomy needed to assess public needs and make recommendations to the governing board."

Federal regulations provide that a recipient of CPB funds must comply with certain open meeting requirements in order to qualify for continued funding. While not as extensive as the Brown Act, the regulations do set fairly firm and clear parameters and effectively prohibit closed sessions for arbitrary or political reasons. Since the fall of 1995, however, a group of dissidents critical of the operation of Pacifica's flagship station, KPFA in Berkeley have been complaining about exclusion from meetings of the board, inadequate agenda notices and a gradual neutering of the policy consultation role of station advisory boards, with their autonomy threatened by the group's leadership.

"Take Back KPFA," consisting mostly of long-time station supporters and volunteer program producers -- the latter saying they have been gradually displaced by more professional staff -- submitted repeated complaints to CPB, but got no follow-through until recently.

Arvizu's report, noting that Pacifica has already been given all its $1,094,921 in CPB funds for 1997, recommends that CPB's vice president of systems and station development ask Pacifica for certain documentation about its summer and fall meetings in order to qualify for the release of 1998 funds in November. The documentation Arvizu suggests should be demanded of Pacifica include:

• Copies of board meeting announcements made in all five cities where it owns stations (KPFA in Berkeley, KPFK in North Hollywood, KPFT in Houston, WPFW in Washington, D.C., and WBAI in New York). The report found instances where the board announced its meetings only in the city where it planned to meet.
• Copies of agendas that reflect open deliberations except where CPB regulations allow closed sessions. The report found that at recent quarterly meetings all business other than a brief period for public comment was behind closed doors.
• Copies of summer and fall board meeting minutes, and written explanations to the public justifying any closed sessions; and
• "A revised policy statement for advisory boards giving them the autonomy provided by the (Communications Act), and relieving them of operational requirements."

Comment: In the fall of 1995, at the request of members of Take Back KPFA, CFAC sent a letter to Pacifica's president outlining several of these concerns, and asking for corrective action. There was no response. Since that time the dissident group has dealt with several successive Inspectors General, with Arvizu the first to conduct an investigation. At this stage his report presents his superiors with an essentially political decision -- whether to make the recommended documentation demand of Pacifica and enforce it by a funding cutoff. There is no record of a CPB funding recipient ever losing its grant for failure to comply with sunshine regulations, but it is by no means clear that Pacifica's conduct is precedented either.

Ironically, Pacifica is probably best known nationallyfor its progressive political history and its defense of First Amendment principles. And even more ironically, it may well be in part the CPB's increasing pressure on public broadcasters to show a certain level of listeners to justify funding -- a ratings game of sorts -- which has led the Pacifica board to adopt a more commercially corporate mind-set, affecting its meeting style and eroding its longstanding participatory mystique. As Arvizu notes, both California stations are significantly shy of their listener ratings targets: KPFA by 25 percent and North Hollywood by 50 percent.

Back to top

 

Kopp Amends Brown Act Bill to Be More Accommodating to Local Agencies

Senator Quentin Kopp (Ind-San Francisco) amended his Brown Act bill, SB 138, on May 7 to be far friendlier to local agencies. Items:

• a provision was dropped that would have extended the Act to cover meetings of entities "predominantly funded" by a legislative body to perform delegated duties;
• a provision was dropped that would have made it clear that when a public employee demands an open discussion of complaints or charges against him or her, the body may not retire into closed session, after airing of the charges, to deliberate on them;
• a provision was added that would allow meetings by any teleconferencing technology;
• a provision was added that would dispense with the requirement that bodies set the time and place for regular meetings of standing committees and advisory bodies;
• a provision was added that would require, upon written annual request, mailing of agendas or agenda packets in advance of meetings, but would also allow charging for related actual costs;
• a provision was added that would allow an emergency finding authorizing action on an item not on the agenda, based on a two thirds vote of those present (as opposed to the current requirement of a two thirds vote of the entire body);
• a provision was added that would allow notices of special meetings to be delivered to the media personally or by any other means (as opposed to the current requirement of personal or mailed delivery).

Back to top

 

 

August

 

After Three-Year Cease Fire, Brown Act "Cleanup" Amendments Warrant Caution

SB 138, Senator Quentin Kopp's first effort in three years to amend the Brown Act, was signed by Governor Pete Wilson Aug. 9 and will take effect Jan. 1, 1998.

The measure was regarded as a "cleanup" opportunity to address problems posed, or left unresolved, by Kopp's wholesale revisions to the Act that took effect in 1994. At that time, supporters and opponents of the legislation agreed to a three-year moratorium on efforts to change the Act in controversial ways, to allow some experience with the new rules.

SB 138 was introduced in January as a bill that would:

• Apply the Brown Act to meetings of outside bodies that are predominantly funded by an elected body such as a city council, board of supervisors or school board, and which exercise authority delegated to them by the subsidizing body.
• Prohibit local bodies, when a public employee demands an open and public airing of the charges against him or her, from then retiring into closed session to deliberate on the charges.
• Allow members of a body who are not on a standing committee to attend its open and public meetings as passive spectators.

The first two provisions were controversial enough to be forced from the bill by the end of May. The third was expanded to allow attendance by one legislative body at the open and public meetings of a separate legislative body of the same agency, or of another local agency. Thus, for example, entire city councils, school boards or boards of supervisors may attend each others' meetings without notice to their own constituencies, so long as they neither participate in the "host" meeting nor go into conclave together.

Other provisions of the new amendments:

• Authorize meetings by both audio and video teleconferencing, provided that each site participating in the meeting is identified in the meeting notice, is accessible to the public and accommodates citizen speakers addressing the body, and that all votes are by roll call.
• Drop the requirement that standing and advisory committees of local bodies adopt a regular meeting schedule (and thereby leave such bodies with only "special" meetings, preceded by 24-hour rather than 72-hour agenda posting requirements);
• Require agencies to mail agenda packets for a meeting to those requesting and prepared to pay "the cost of providing the service" -- but with the mailing not required until the meeting's agenda is posted or the materials are distributed to members of the body, whichever occurs first;
• Lower the vote required to make a finding of urgency that allows action on an item not on the agenda. Presently, the approval must come from 2/3 of the entire body, or if fewer than 2/3 are present, by unanimous vote of those present. The new requirement allows approval by 2/3 of those present if those present are 2/3 of the body's members, or by all if fewer than 2/3. On a typical five-member board, this would mean that when only four of the five are present, the vote required to find the need for off-agenda action drops from all four present to three out of four.
• Allow agencies to alert the media with written special meeting notices personally or by any other means of delivery, whereas the law has up to now required personal or mailed service.

Comment: As with all Brown Act compliance, the majority of local agencies that make a good faith effort to be as open as possible with the public will probably not exploit these changes. But citizens and journalists who deal with the minority should be aware of the following:

• The combination of this bill's provisions will make special meetings much more common for standing and advisory committees (since they need no longer schedule regular meetings).
• Mailed "agenda packets" for special meetings will seldom if ever reach the recipient within the 24-hour notice period before the meeting, and in any event the lack of definition in the bill leaves public agencies to decide what is or is not appropriate to include in the "agenda packet."
• Special meeting notices to the media may now come by fax or, arguably, by e-mail.
• A special (as well as a regular) meeting of any local agency may be visited without notice by any or all members of any or all other legislative bodies in the community; and
• A special (as well as a regular) meeting may be conducted entirely by a telephone, video, or possibly even on-line audio/video teleconference.

Accordingly, it will pay to be cautious. News organizations may want to take inventory of all standing and advisory committees they wish to cover, serve them with written notice asking each body to provide the 24-hour special meeting notices by a specified means agreed on in advance, and take special care to discover when a majority of a local body plans to attend another's meeting. Other citizens, before paying for the agenda packet mailing, may want the body in question to define what will and will not be included in the agenda packet, and to assure themselves that the mailing will not reach them too late to be of any value.

Back to top

 

Court: Ripeness No Bar to Utility Watchdogs' Brown Act Suit

If a local agency and its challenger clearly disagree about the legality of a past meeting-related event under the Brown Act, enough controversy exists to allow a court to settle the argument. So ruled the California Court of Appeal for the Fourth District July 25 in CAUSE v. City of San Diego (Case No. ED026633), in reversing a judgment of dismissal against the plaintiff and allowing it to take its case to court on the merits.

The procedural ruling means that the doctrine of ripeness, which is used to screen out lawsuits in various contexts that are seeking advisory opinions rather than resolutions of specific disputes, is not a barrier to a Brown Act suit seeking a declaratory judgment. Nor, said the court, need a plaintiff show a repeated pattern or practice of the same violation; so long as the agency denies that a specific episode violated the Act, that one occurrence is enough to allow a court to assess its legality in a declaratory judgment action.

Accordingly this plaintiff, a public interest advocacy group called California Alliance for Utilities Safety and Education (CAUSE), intends to go to trial on an issue which arises with some frequency elsewhere: When is there sufficiently defined "pending litigation" to justify secret negotiations and surprise settlements on significant policy issues?

CAUSE complains of a pattern in which the San Diego City Council goes into closed session on the pretext of threatened litigation, without informing the public of either what the threat is or who is making it, discussing matters in closed session unrelated to any pending litigation, and when the time comes for open meeting ratification of the resulting "settlements," disguising the true nature of the commitments made with vague language on the meeting agenda.

CAUSE notes that in the most recent episode in the spring of 1995, the council posted an agenda listing for its March 28 meeting which announced a closed session to discuss its own "significant exposure to litigation" but which also specified the topic as "City v. SDG&E." Ten years earlier, San Diego Gas & Electric Company had sued the city to obtain relief from its franchise agreement commitment to dedicate 4.5 percent of its revenue from city residents to the cost of undergrounding overhead power lines. The council in 1986 used a closed session to settle this case by reducing the company's undergrounding obligation for the period 1990-1994.

With that settlement expired in 1995, the council readdressed the undergrounding issue as a litigation matter in closed session on March 28. In the session it agreed to reduce SDG&E's undergrounding burden for the years 1994-2000 by a total of $169 million, in return for an extra $3.4 million to be paid to the city in franchise fees. In the only public mention of this deal, the consent agenda for its April 10 meeting mentioned a four-part resolution, including authorization of a "settlement agreement" with SDG&E "concerning surcharge franchise fees, underground allocations and expenditures and franchise fees on transportation networks."

The appellate opinion states: "The difficulty the plaintiffs had in discovering the 1995 settlement suggests that in the absence of declaratory relief there is some risk that any future settlement with respect to PG&E's undergrounding obligation will also go undetected by interested members of the public" (emphasis added).

Comment: The utility frees up $169 million in undergrounding costs for other uses. The city gets an extra $3.4 million in fees. Outside counsel handling the deal get an extra $40,000 (that was the only dollar figure cited in the council's consent item resolution). The residents of San Diego get shut out of even the opportunity to consider and comment on whether all this is a good bargain.

For business interests seeking a quiet deal with a public agency, or for officials equally keen on unmonitored revenue opportunities, the CAUSE episode provides an obvious formula for bypassing public scrutiny: invoke the litigation mantra, work out the deal behind closed doors, and couch the related notices in vague language that mentions neither the justification for litigation anxiety nor the material tradeoffs at stake. And if possible, use that time-honored catchall for routine, noncontroversial approvals, the consent agenda.

But does the Brown Act really countenance such practices? If the CAUSE case is not ripe for adjudication, nothing is.

Back to top

 

Humboldt County Supervisors Facing Suit for "Semi-Closed" Session

The North Coast Journal, a monthly news magazine published in Arcata, has filed suit seeking a court declaration that the Humboldt County Board of Supervisors violated the Brown Act at an April 3 meeting in which a local contractor was permitted to consult with the board in closed session on the choice of a new planning director.

The Journal's contention is that the Brown Act requires those closed sessions that it authorizes to exclude all persons whose presence is not essential confidentially to inform or advise the legislative body. The attorney general, for example, has concluded in a prior published opinion that neither journalists nor members of the public can be admitted into the closed session on a selective basis; while the body's attorney or certain staff members whose information is essential to a decision may attend closed sessions to fulfill their unique functions, meetings may not be "semi-closed."

But the county argues that the contractor, as a member of a duly appointed advisory committee and thus a person with an "official county title," was authorized to be present in the closed session deliberations on appointment of an interim planning director.

The Journal is asking not only for a declaration that the practice violated the law, but also for an order prohibiting it in the future and directing the board to release any minutes or other other information indicating the substance of the closed session discussion.

Back to top

 

 

September

 

Lawsuit Focuses on Use of Closed Sessions on Property Negotiations

What circumstances allow a local legislative body to go into closed sessions on real property negotiations -- and how explicit must the notice be? These questions are to be addressed in a suit brought by a Mountain View resident, Gary B. Wesley, against the Mountain View City Council.

Wesley's action, filed Sept. 9 in Santa Clara County Superior Court, seeks a judicial declaration that the council violated the Ralph M. Brown Act at its March 25 meeting when it held a closed session dealing with a lease renewal by the Mountain View Chamber of Commerce.

The agenda for that meeting listed the property under negotiation as "Chamber of Commerce," noted the "negotiating parties" as "City of Mountain View and Chamber of Commerce," and stated the subject of negotiations simply as "lease terms."

The full scope of the discussion, Wesley says, was a proposal by the Mountain View Chamber of Commerce to move its headquarters from its current leased site in the city's Pioneer Park to a different location in the park, upon which a new building would be constructed. The first time the real dimensions of the proposal were discussed publicly was at a July 5 meeting, he says.

When Wesley complained to City Attorney Michael D. Martello about the matter, Martello defended the generality of the agenda notice as justifiable in that the lease was "about to expire." Further, he said that city staff "is regularly contacted by people interested in buying or leasing city property . . . In responding to inquiries . . . it is prudent for staff to first discuss the terms upon which the existing lease could be changed or an exchange of property could be effected and upon what terms or conditions the directors of the municipal corporation would seek to pursue same."

Wesley notes that the lease expiration was two years in the future, and translates Martello's rationale to mean that the Mountain View Council is routinely presented with property-related proposals in closed session prior to any public discussion of the overtures. He believes this violates the Brown Act, and that not only a declaration to that effect but a court order is required to stop the practice.

In his follow-up letter to Martello, Wesley said such an expansive use of the property negotiations closed session could bury or delay any number of important public issues. As one example, he said, "(S)uppose the City Council wished to take a position on proposed federal legislation to permit commercial air cargo jets into Moffett Field (subject to the military base closure process). And suppose that, in order to gain support, the federal government offered, in exchange, to extend the existing lease of its property at Moffett Blvd. and Middlefield Road (the site of the City's temporary library). Under your interpretation of (the Brown Act), the City Council could consider and vote on the whole package in closed session."

Back to top

 

 

October

 

CFAC and Journalist Groups Challenge Oakland Trustees' Meeting Practices

The Oakland Unified School District's governing board is being asked to rededicate itself to observing the Brown Act by a collection of challengers objecting to several of the trustees' meeting practices over the past year.

The California First Amendment Coalition, the Northern California Chapter of the Society of Professional Journalists, the Radio-Television News Directors Association of Northern California and the Oakland Tribune are the collective authors of a letter drafted and sent to the board by attorneys James Wheaton and Elizabeth Pritzker of the First Amendment Project.

The letter calls on the board to "renew its commitment to the public it serves by pledging full, immediate and continued adherence to all mandates" of the Brown Act, warning that litigation may ensue if any of the following itemized violations are repeated:

• A Dec. 21, 1996, closed session, listed as relating to personnel and litigation, which yielded a statement clarifying its earlier open session resolution on Ebonics;
• An April 28, 1997, non-public meeting of the board's Task Force on the Education of African American Students -- a body covered by the Brown Act -- with Superintendent Carolyn Getridge, without advance notice of its proposed action, and approving a set of recommendations not released to the public;
• A July 31 adjournment into closed session, without prior notice, to reverse a one-week-old action appointing a school principal and substitute another person in her place;
• An Aug. 6 action to appoint a new superintendent, one day after the incumbent had announced her plan to resign in 30 days, justifying its non-agendized action as being a situation demanding "immediate" action; and
• At the same Aug. 6 meeting, a closed session on "litigation" in which the board discussed and adopted a new school district logo.

Back to top

 

Supervisors Lose Brown Act Suit, Ordered to Tape Future Closed Sessions

The Humboldt County Board of Supervisors, cited for violating the Brown Act in admitting an advisory committee member to a closed personnel session, has been ordered to release minutes and records pertaining to the discussion and tape record future closed sessions.

In what appears to be the first instance of applying the taping remedy, added to the Act as part of the major 1994 revisions, Superior Court Judge J. Michael Brown ruled on Oct. 7 that the supervisors violated the open meeting law in allowing a private contractor to sit in on a closed session in which the selection of an acting planning director was deliberated. The contractor, Tom Dinsmore, is a member if the board-appointed Planning Review Committee, composed primarily of developers.

The North Coast Journal, an Arcata-based monthly review of "politics, people and art," brought the case when the supervisors refused to concede that Dinsmore's presence in the closed session had been illegal.

In a news release announcing the victory, editor and publisher Judy Hodgson said the county's initial response was that only "staff" were present, and later that Dinsmore was a legally authorized witness, given his official role on the advisory committee. The board had actually invited two committee members, Dinsmore and Tom Sutton.

"I don't think it takes a great deal of imagination to figure out why Sutton and Dinsmore were invited," Hodgson said. "The supervisors obviously wanted a planning director that would be more appeasing toward developers and contractors. They wanted approval of their choice. If the board wanted public input on the selection of a planning director, they should have scheduled a public meeting to hear from all of the public -- not just developers."

Back to top

 

Community College Trustee Pursuing Brown Act Case against Own Board

The Yuba Community College District is being sued for violations of the Brown Act -- and infringements of First Amendment rights -- by one of its own trustees, who was punished for being too zealous an advocate for the interests of a particular campus.

Larry Schapiro, a Yolo County resident who represents the Woodland area on the district board, complains that last December his peers censured him and authorized a $30,000 "fine" in retaliation for his outspoken criticism of district programs, services and employees and his call for the creation of a separate college district.

Schapiro also contends that the censure order was the topic of a round of backstage serial meetings. On those grounds he submitted a written demand for cure and correction, and the board duly revisited the matter at a later meeting and ratified their earlier adoption of the censure and penalty.

But in the meantime Schapiro had taken the matter to court, seeking invalidation of the action taken. Because he filed the action prematurely -- not giving the board the statutory period for correcting the violation -- his suit was dismissed by Yolo Superior Court Judge Stephen L. Mock, without leave to amend.

Schapiro is now challenging the court's dismissal without leave to amend in the Third District Court of Appeal, and also is asking the court to decide the underlying constitutional issues, namely his right to be free from censure for engaging in political activity, including speech, petition and political association.

The censure order cited his advocacy for complaints centering on the Woodland campus and his "seeking to involve himself in the day-to-day operation of" that campus. It also targeted his involvement in a campaign to have the Woodland campus secede and form its own district, and the trustees later want so far as to demand that Schapiro disclose the identities of others in the separatist drive. In a March 3 letter to him they said his choice was "simple: reveal the names or resign your office."

Back to top

 

A.G.: Lone School Trustee Can't Reveal Information from Litigation Session

Individual school board members may not take it upon themselves to reveal information from a closed session of the board to consult with its attorney on pending litigation. So concludes a recent opinion (No. 97-410) of the office of Attorney General Dan Lungren, by Deputy Attorney General Gregory Gonot.

The essence of the opinion is that it is the board as a whole, not its individual members, which collectively constitutes the client in the district's relationship with its attorney, and that only the board or its majority can waive the privilege for attorney-client confidences.

Comment: What may be most useful in this otherwise predictable reading of the law is the statement in footnote 2:

"We assume that the information received and discussed pertains to the litigation which justifies the holding of closed session. If the information is not pertinent to the litigation, it must not be discussed in closed session. A member who brings such impermissible closed session discussions to the attention of the public, without revealing matters that are properly discussed in closed session, would not violate the pending litigation exception of the Act. The confidentiality requirements only apply to what is properly discussed in closed session."

This appears to be the only instance in which the Attorney General has explicitly recognized the lawfulness of whistleblowing by members of a legislative body who are witnesses to Brown Act violations.

Back to top

 

 

November

 

Court: Transitional Meetings of Supervisors-elect Didn't Violate Brown Act

Scenario: In a largely agricultural county, a growth-friendly board of supervisors moves in late 1991 to amend the general plan to allow development of four new towns with a population of 140,000. Anti-growth forces collect signatures and get an advisory vote (Should the development be allowed?) on the ballot for a special election in June 1993. Meanwhile in June 1992, two anti-growth supervisors are elected, but will not take office until noon on Jan. 4, 1993. The "old" board uses a December 1992 meeting to approve 19 development agreements based on the controversial general plan amendments; they will start vesting in favor of the developers on Jan. 7.

But also during that December meeting, an anti-growth member of the old board who will continue in office meets with the two new (but unsworn) anti-growth members, and they plot the timing and procedures for what will be needed to stop the development agreements from vesting. Between Jan. 4, when the new supervisors take office, and Jan. 7, when the development deals would have begun locking in, the new anti-growth majority calls a special meeting and takes urgency action effectively abrogating the general plan amendment and the development agreements it accommodated. At the June election, the advisory vote vindicates the new board's policy reversal-by about 64 to 36 percent.

One of the frustrated developers sues the county on several theories, and among them alleges that the anti-growth bloc's December meetings, coupled with a Jan. 4 conference within hours of the new supervisors' taking office, constituted illegal serial decision-making in violation of the Brown Act.

Not so, the Third District Court of Appeal has ruled in 216 Sutter Bay Associates v. County of Sutter, 3 Civ. C0215 (10/21/97). While the Brown Act now governs the conduct of elected but unsworn local officials, that rule did not take effect until legislation of 1994; thus the December 1992 anti-growth plotting between the carryover supervisor and the two supervisors-elect-who would form a new board majority early the following month-was then legal. And a single meeting of that new majority on Jan. 4 did not violate the Act because (at least insofar as shown by the evidence) its only business was to schedule a properly noticed special meeting for the next day.

Comment: The case raises an interesting question if such a scenario were replayed today. Could the prospective majority of three (one incumbent and two supervisors-elect) meet at all prior to the latter's taking office? If so, how would they style themselves in the meeting notice: As the Sutter County supervisors-to-be?

Back to top

 

Update: Oakland School Board Not Conceding Brown Act Violations

As noted earlier in Flash, the California First Amendment Coalition, the Oakland Tribune and several San Francisco Bay Area journalist organizations recently called on the Oakland Unified School District's board to renew its commitment to the Brown Act in the light of a number of non-public or inadequately noticed discussions and actions over the past year.

Board President Mary Quan has notified CFAC that no such violations, in the board's view, have occurred. Contrary to CFAC's allegations, the board contends:

• There was no closed session discussion by the board on Dec. 21, 1996, leading to the superintendent's issuance of a clarification of the board's controversial Ebonics resolution;
• The challenged April 28 meeting between the superintendent and the African-American Task Force, held without public notice, was lawful because the Task Force was created by the superintendent, not the board;
• The board did not hold a closed session without notice on July 31 to rescind the one-week-old appointment of a principal -- any action was taken in open session on June 30;
• The board lawfully acted without agenda notice to appoint a new superintendent on Aug. 6, one day after receiving the letter of resignation of the incumbent, because the Brown Act permits decision-making without notice when urgent circumstances demand "immediate action." In Quan's words, the "sudden, unexpected resignation of the Superintendent, in the judgment of the Board, creating the uncertainty of administrative leadership within the District, imperiled reconfiguration and numerous other projects that had to be completed by the opening of school for the current term"; and
• The board did not meet in closed session on Aug. 6 to discuss and adopt a new district logo; the only closed session was for lawful purposes and no logo has yet been adopted.

Back to top

 

A.G. Opines: Equalization Board Appeal Hearings Open to Non-party Comment

Taxpayer appeal hearings before the State Board of Equalization, while in many respects resembling a judicial proceeding, are open to comment by members of the public and public employees, even though they are not parties to the matter.

So concludes Opinion No. 97-412 from the office of Attorney General Dan Lungren, which notes that the general right of public comment in the Bagley-Keene Open Meeting Act (Government Code Section 11125.7) has a few exceptions, but none of them applicable to the type of hearing in question.

"A member of the public may be concerned about the actions of the Board for a variety of reasons, including their precedential effect," notes the opinion author, Deputy Attorney General Anthony M. Summers.

Likewise public employees are entitled to comment, and may want to do so, especially on behalf of their employing agencies: "For example, in the property tax field, local public agencies are the recipients of property taxes. Depending on the Board's actions in this area of the law, local public agencies may have their funding levels increased or decreased."

Back to top

 

A.G.: Local Bodies Can Use Selected Citizen Committees to Vet Job Candidates in Secrecy

A school board-created advisory committee consisting of hand-picked citizens, staff members and students may hold closed sessions to interview candidates for a superintendent's position.

So concludes a Nov. 10 published opinion of Attorney General Dan Lungren (No. 97-414), written by Deputy Attorney General Anthony da Vigo.

The opinion, responding to a request from Senator Mike Thompson (D-St. Helena) thus approves an increasingly common practice among school districts-and one now likely to be adopted by other local agencies.

Its analysis is simple: a board-created committee is a "legislative body" for Brown Act purposes, and the Act allows a "legislative body" to hold closed sessions on personnel selection.

The "district liaison council" approach satisfies the perceived need to involve the community more directly in critical personnel selection processes. But it has been repeatedly criticized by the California First Amendment Coalition for not going far enough-for excluding the community as a whole from its interviews and deliberations and involving only a sampling acceptable to the board and administration.

The Attorney General has in the past concluded that a local body may not, under the Brown Act, selectively invite members of the public into its own closed sessions. In this opinion the author sees no inconsistency with that view, since "(i)n the matter presently considered, no 'members of the public' will be in attendance, only members of the legislative body itself and the candidates for the office of district superintendent."

Comment: In several cases involving committees or meeting arrangements used to exclude public attendance (Sacramento Newspaper Guild v. Board of Supervisors, 263 Cal. App. 2d 41; Joiner v. Sebastopol, 125 Cal. App. 3d 799; Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781) the courts have insisted that local bodies may not inflate the secrecy tolerances of the Brown Act by semantic or formalistic contrivance.

Nowhere has the Brown Act ever expressly stated that a body may not selectively invite citizens into its closed sessions; but that was the interpretation of the Attorney General in a 1965 opinion, and for good reason. Selective inclusion in confidential meeting processes is inconsistent with the principle that the public as a whole is entitled to maximum practicable attendance rights, and that when and if non-public conferences are authorized, they must be just that.

Nowhere does the Brown Act state that a closed "personnel" session is simply not available to an external advisory committee-albeit a "legislative body" for other purposes-when the effect is the same as inviting the select circle into the employer body's own closed sessions. But if the democratic essence of the Act is to mean anything, it surely must prevent local officials from endowing a favored few with a privileged, exclusive participation in an otherwise secret decision-making process. Only a few, of course, can be appointed to an advisory committee. But all should be allowed to share in what it knows and says.

Back to top

 

 

December

 

Press-Democrat Sues to End Secrecy of Petaluma's Personnel Advisory Committees

The Santa Rosa Press-Democrat has sued the City of Petaluma, contending that the city council's advisory committees on city manager selection violated the Ralph M. Brown Act in holding closed sessions to interview job applicants and deliberate their merits.

The action, filed Dec. 11, challenges not the council's appointment of or reliance on the four advisory panels -- of city managers from other communities, of city employees, of department heads and of Petaluma residents -- but its decision to have the bodies close their doors to the public. It seeks a court declaration that these "legislative bodies," since they did not have the power of appointment or employment but only of recommendation to the city council, were not authorized by the Brown Act to hold closed sessions on appointment or employment. It also seeks a court order barring the city from proceeding with such a secret advisory process in the future.

In Petaluma, the newspaper's petition indicates, this approach had the following sequence:

• On November 14 the Professional Manager Committee interviewed the six candidates then in the running, deliberated and passed its recommendation to the council;
• The next day the council interviewed the six and cut the field to three;
• On or before the 21st the Employee Committee and the Department Head Committee each held its own closed interview and deliberation meetings concerning the three finalists and reported their recommendations;
• On November 22 a seven-member Citizens Committee likewise secretly interviewed the three, deliberated and forwarded its pick, and on that same day the council, based on the advisory results (or perhaps not) made the final decision.

The council's position is bolstered by a November 10 Attorney General's opinion which concludes that there is nothing in the closed personnel session provisions in the Act to confine them to the body that makes the actual hiring decisions. The California First Amendment Coalition has criticized this procedure, however, on the basis that just as a city council may not selectively invite external parties such as union representatives, peer experts and favored citizens into its own closed sessions on hiring and exclude the rest of the public -- a point established by the Attorney General as early as 1965 -- it may not accomplish the same "semi-closed" effect by cloaking these groups with a collective advisory role and then excluding the public from their proceedings.

Back to top

 

Brown Act Complainant Given Split Decision in Chino School Board Case

The board of trustees of the Chino Unified School District violated the Brown Act a year ago in a pair of closed session meetings ending in the buyout of the superintendent's contract.

So ruled San Bernardino County Superior Court Judge Frederick A. Mandabach recently in a case brought by Richard McKee, a concerned citizen.

Judge Mandabach did not give McKee all the relief he had sought, but did issue a declaratory judgment that the board's procedure violated the Act in that the agenda notices for the two meetings at issue -- in December 1996 and January 1997 -- did not provide for public comment on closed session items, and that the stated purpose of the closed session at which the buyout was approved was described on the agenda as "Public employee performance evaluation . . . Superintendent's evaluation."

On two other counts, however, Judge Mandabach denied relief. He declined to invalidate the buyout because it resulted in a contract paying outgoing Superintendent David Alvarez $150,000 in return for his resignation and release of claims, and this was found to be a contract to which Alvarez had relied to his detriment. He also declined to find the board's discussion of the compensation in closed session a violation of the Act, which generally prohibits compensation discussion in closed personnel sessions, because in this instance "the termination of Alvarez's employment contract is tantamount to an action for a reduction of compensation resulting from the imposition of discipline," which the Act permits as an exception to the general rule.

Back to top