These reports cover issues dealing with the public's right of
access to meetings conducted by governmental policy-making and
advisory bodies. The typical laws involved are the Ralph M. Brown
Act, governing meetings of local bodies; the Bagley-Keene Open
Meeting Act, governing meetings of state boards and commissions;
and at the federal level, the Government in the Sunshine Act and
the Federal Advisory Committee Act.
1997
1998
January
February
March
April
May
June
July
August
September
October
November
December
January
SB 138: How to Adjust to the Latest Brown Act Changes
Effective Jan. 1, 1998, several changes in the Ralph M. Brown
Act resulting from Senator Quentin Kopp's SB 138 of 1997 may require
heightened alertness on the part of news organizations and others
who regularly monitor the business of local public agencies.
The changes, and suggested procedures to cope with them, are as
follows:
- Surprise Visitors: Previously, the general rule in Government
Code Section 54952.2 defined a "meeting" subject to Brown Act
requirements broadly, but then itemized several situations where
the congregation of a majority of a legislative body at a particular
event relating to public issues would not trigger the Act, so
long as the members refrained from discussing public business
"among themselves." These exceptions allowed local officials to
attend professional conferences, open and publicized community
forums, social occasions and the like to acquire information without
having to worry about posting a notice announcing their own "meeting"
and complying with all the other Brown Act rules. There was even
an exception allowing a majority of one body (e.g. the city council)
to attend an open and noticed meeting of another body of the same
agency (e.g. the city planning commission).
These rules are still in place. But added to the list of exceptions
are two new situations. Now a body's majority can attend "an open
and noticed meeting of a legislative body of another public agency,"
as well as "an open and noticed meeting of a standing committee
of that body" itself. So, for example, the majority of a city
council may, without providing any special notice to the public,
attend a meeting of the board of supervisors or a meeting of its
own public works committee.
There are some qualifiers, however. In the case of visits to a
legislative body of a different agency, the visiting officials
may not "discuss among themselves, OTHER THAN AS PART OF THE SCHEDULED
MEETING, business of a specific nature that is within the subject
matter jurisdiction" of their own body (upper case added for emphasis).
This would appear to mean that the only way members of the visiting
majority may interact with each other on a topic over which they
have some authority or official concern is to do so "as part of
the scheduled meeting," i.e. that their deliberation be noticed
on the host body's agenda. If such is the case, it might be simpler
and more flexible to have the host and visitor bodies schedule
a joint special meeting, in which all members can freely interact
without concern for Brown Act compliance. Otherwise the visitors
will be strictly constrained from interacting with one another.
In the case of a visit by a majority of a local body (e.g. three
members of a five-member city council) to a meeting of a council
standing committee (e.g. the public works committee, comprising
the other two members), the qualifier is that the visitors must
attend "only as observers." As evidence of some ambiguity in this
language, Senator Kopp has asked for an opinion from Attorney
General Dan Lungren as to whether the visitors may "(1) sit in
chairs on the dais designated for members of the standing committee,
(2) ask questions, or (3) make statements." Lungren has asked
that members of the public with views on these questions provide
written comments to the opinion-drafter, Deputy Attorney General
Clayton Roche, at 50 Fremont Street, Suite 300, San Francisco,
CA 94105-2239; with phone questions to (415) 356-6338. Cite Opinion
Number 97-1207; replies preferred by January 15. The clear risk
in this case is that if the visiting majority does not remain
passive, an interactive session of the standing committee and
the visitors will be indistinguishable from a meeting of the full
body -- but one never publicized as such -- at which policy decisions
are crystallized without adequate public awareness.
- No More Regular Meeting Requirements for Committees: Previously,
every group meeting the definition of "legislative body" of a
local agency was required under Government Code Section 54954
to "provide, by ordinance, resolution, bylaws, or by whatever
other rule is required for the conduct of business by that body,
the time and place for holding regular meetings." This rule still
applies to governing bodies and permanent boards or commissions,
but no longer applies to "advisory committees" and "standing committees."
Such bodies still may adopt regular meeting schedules if they
wish, but if they choose not to, the default consequence is that
all their gatherings are "special meetings." That in turn would
dictate, under Government Code Section 54956, that with respect
to every meeting:
- a written notice of the time, place and "business to be transacted
or discussed" be posted in a place accessible to the public at
least 24 hours before the meeting, and also delivered to all members
of the body, and to every local newspaper and news broadcaster
which has requested notice in writing, also 24 hours in advance;
and
- matters not listed in the notice, however convenient or urgent
their discussion might be, may not be "considered" at the meeting.
In view of the added special attention and inflexibility of the
special meeting approach, committees might well prefer to adopt
and stick to a regular meeting cycle, whose only notice mandate
is the posting of a single agenda 72 hours in advance. But if
they opt to dispense with a fixed schedule and treat every meeting
as special, the result (in combination with the first set of changes)
is that, for example, a special meeting of a city council's public
works committee might be attended by the full council, with perhaps
no effective notice to the public at all if the local news media
are not careful to demand the notice due them and if others do
not check the agenda posting site on a daily basis.
- Special Meeting Notice by Any Written Means: Previously the written
notice of special meetings noted above was required to be delivered
-- to all members of the body in question and to the local press
requesting notice -- "personally or by mail." The Act now allows
the delivery to be personal "or by any other means." It still
must be "written" (no phone messages left on voicemail), but the
new language apparently allows for delivery by fax or even e-mail,
for example.
- Mailed Agenda Packets for a Fee: Previously the Act allowed anyone
to request to be sent a personal "notice" of all special and even
regular meetings. The content of the notice was not specified,
the request had to be renewed annually, and the agency could charge
the actual cost of providing the notice. Meanwhile many local
agencies mailed full (or apparently full) agenda packets, as a
public information gesture and without charge, to local media
who covered meetings regularly. Under SB 138 anyone can now request
to be sent "all the documents constituting the agenda packet,"
and upon such request (renewable annually), they must be mailed,
upon payment of a fee not exceeding "the cost of providing the
service."
But aside from the cost and the ambiguity of what constitutes
"the agenda packet" (some school districts and other agencies
have several versions for different recipients), there are some
significant limitations to this new "service." First, there is
no material legal consequence for an agency which slips up or
ignores a particular mailing. Failure to deliver does not invalidate
any action taken at the meeting. Second, the mailing is not required
until the agenda packet is distributed to a majority of the body
in question, or until the regular meeting agenda or special meeting
notice is posted, whichever occurs first. Thus a regular meeting
packet placed in the mail at 5 p.m. Friday (at the time the agenda
is posted) for a city council meeting at 5 p.m. Monday may or
may not reach the recipient in time for the meeting, and a mailing
coinciding with the 24-hour posting of a special meeting notice
will be timely even less frequently.
- Meetings by Audio or Video Teleconference: Previously the Brown
Act permitted meetings by carefully specified "video teleconferencing",
a technology which few local bodies appeared to be exploiting.
Under SB 138 bodies may use any form of teleconferencing, defined
as "a meeting of individuals in different locations, connected
by electronic means, through either audio or video, or both."
But there are significant qualifications on this procedure. Each
location connected by the teleconference must post an agenda for
the teleconference meeting and comply with the Brown Act in all
other respects (e.g. be accessible to the public and allow for
public comment), and each agenda must identify all teleconference
locations.
Suggested Action: For news organizations, something like the following letter should
be sent to the presiding officer of the governing body of all
cities, counties, school and other districts that you cover with
any regularity, in terms of either regular or special meetings.
"Dear _____________,
"As you probably know, SB 138 by Senator Quentin Kopp, which took
effect January 1, has made a number of changes in the Ralph M.
Brown Act, especially in the area of public notice requirements
and what types of gathering are permitted under what circumstances.
"We are sending you this letter to avoid confusion and establish
a clear understanding of our expectations concerning how the changes
are observed.
"1. Notice of Meetings.
"a. Advisory and Standing Committees: We hereby request to be
given no less than 24-hour written notice of every meeting of
every committee of every legislative body within your agency,
as provided in Government Code Section 54956, except for those
meetings conducted pursuant to a formally adopted regular meeting
schedule. We ask this because while under SB 138 advisory and
standing committees are no longer required to adopt regular meeting
schedules, in the absence of such a schedule all meetings of the
committee would become special meetings, with the requisite direct
written notice to requesting media. If it will be your policy
to continue a formally adopted regular meeting schedule for your
committees, please advise us accordingly.
"b. Form of Delivery of Special Meeting Notices. We ask that you
inform us of what manner of delivery we may expect for the 24-hour
notice of special meetings. Under SB 138 you may now use any means
of delivery of the written notice, including but not limited to
the prior options, namely personal delivery or mail. We ask for
this clarification so that if, for example, you plan to employ
fax or electronic mail, we can provide you with the information
to get the notice to the department responsible for covering your
meetings.
"c. Agenda Packets. SB 138 provides that any member of the public
may request and shall be provided with a mailed agenda packet
for every regular or special meeting. Before making this request,
we ask that you inform us as to:
- The charge or fee to be imposed for this service, if any.
- The content which will be included in and excluded from the mailed
agenda packets.
- The means, such as a cover listing or index, by which we will
be able to determine whether a document has been excluded from
the packets.
- The means by which we can be assured that we would receive the
packets in time to make use of them in covering the meeting.
"2. Attendance at Other Meetings. SB 138 allows legislative bodies
to attend meetings of other legislative bodies, including their
own standing committees, without posting notice to that effect.
But to avoid surprise and confusion in this regard, we ask that
you clarify whether, and under what circumstances, you or other
legislative bodies within your agency, would expect to have a
majority of the members present at meetings of other local bodies.
"We appreciate that this letter raises a number of questions which
probably cannot readily be answered without having the entire
governing body, at least, review the text and implications of
SB 138. We believe the best approach might be to calendar these
issues for discussion at a public meeting as soon as possible
and systematically make whatever policy or procedural adjustments
accordingly."
For other citizens, much of the same message could be conveyed
to the local bodies of most interest either as a letter or as
a presentation during the public comment period.
Back to top
Ayala Delivers on His Promise: Bill Would Neuter His State Agency
Meeting Reform
SB 1364 (Senate Governmental Organization Committee; no hearing date),
introduced January 5 by Senator Ruben Ayala (D-Chino), is the
result of a pledge the author made to Governor Pete Wilson last
year in order to secure approval of his bill on state agency open
meeting law. That legislation, which just took effect January
1, amends the Bagley-Keene Act to bring state boards and commissions
under many of the same tightened rules that were added to the
Brown Act for local agencies in 1994.
But to get the Governor's approval, Ayala promised he would introduce
legislation to repeal the enforcement provisions of the bill --
those which allow the attorney general or a district attorney
to sue and seek invalidation of actions taken in secrecy, for
example, or allow a court in some circumstances to order the offending
body to make and preserve tape recordings of its closed sessions.
Comment: This measure delivers on the promise, but Ayala may not push
it with the same enthusiasm as he showed in pressing the bill
it is calculated to undo.
Back to top
March
San Jose Mercury News Wins Brown Act, Public Records Judgment
against City of Sunnyvale
The Sunnyvale City Council violated the Ralph M. Brown Act in
holding a series of eight closed sessions on "personnel" in 1995
which in fact focused on the conduct of one of its own members
-- former Mayor Frances Rowe -- and must now, under the California
Public Records Act, release documents relating to those illegal
discussions.
So ruled Santa Clara County Superior Court Judge Richard C. Turrone
in a February 25 order granting summary judgment to the San Jose
Mercury News and denying the same to the defendant city.
Culminating more than two years of pretrial discovery skirmishing
characterized by one attorney as a "scorched earth" strategy more
familiar in corporate litigation, the ruling addresses several
issues often arising in local politics.
The case centers on tension between Rowe and City Attorney Valerie
Armento. Rowe, elected mayor in 1993 by her six peers, was by
the end of 1994 removed prematurely from that post for what they
termed "councilmanic interference" and conduct unbecoming her
office, and which she insisted amounted to nothing more than asking
tough questions about how the city was being run, including the
size of Armento's budget requests.
Continuing as a member of the council, Rowe in January 1995 took
out a full-page ad in the Mercury News blasting colleagues for
her removal and blaming Armento for instigating it. The council
that year held eight closed sessions to address Rowe's behavior,
and by the time of the November 1995 elections the Mercury News
had learned of them. It demanded that the council rescind all
actions taken in these closed sessions, release related documents,
and hold a public meeting to discuss complaints against Rowe.
The city refused, the newspaper filed suit, and for more than
24 months the city's attorneys interposed objections and asserted
privileges aggressively and repeatedly to resist discovery efforts
by attorneys with the Genesis Law Group, representing the Mercury
News.
Judge Turrone's order, however, squarely and completely vindicated
the newspaper. As to the Brown Act defense that the closed sessions
were legitimate personnel sessions, he found to the contrary,
that they were about Rowe and employee complaints against her,
and what to do about them. The latter punishments included exiling
Rowe from city hall other than for council meetings, and barring
her from almost all contact with either the city attorney or outside
counsel.
"Even more troubling," Turrone commented, "is that all of these
actions, restrictions and censures were imposed behind closed
doors. If Rowe was truly guilty of the conduct that was being
alleged against her, then the citizens of Sunnyvale had a right
to know that their representative was engaging in unbecoming conduct.
Conversely if, as alleged by Rowe, the activities of the majority
of the council and (city attorney) Armento were an orchestrated
attempt to smear and disrupt her political influence, then that
is also something that should have been brought to the attention
of the public. Simply stated, "wrongdoing or incompetence are matters of public concern" (emphasis by underline in the original).
Nor, on balance, did Armento or other employees have an overriding
interest in personal privacy such that the closed sessions were
proper to protect their interests, which were "tangential to the
council's discussions and concerns."
As for the documents, for similar reasons, they were not entitled
to the personal privacy exemption from disclosure, since their
focus was Rowe's official conduct in city hall, not the complaining
employees' personal lives, Turrone concluded. Turrone ruled that
four memos in particular could be redacted to remove the conclusions
and advice of outside counsel but, as he noted, this formality
might be "a day late and a dollar short" since Rowe, as part of
her autumn 1995 campaign to go public with her experiences, used
a press conference to release them all.
Back to top
Court: Students May Try to Show Wilson Lobbied Regents Illegally
on Affirmative Action
Did Governor Pete Wilson break the law by secretly lobbying his
fellow University of California Regents to set up an advance consensus
to end affirmative action?
That is a question which a student newspaper is entitled to use
the open meeting laws to answer, according to a recent decision
of the California Court of Appeals, First District.
In a suit brought by UC Santa Barbara's student newspaper, the
Daily Nexus, and a former editor, Tim Molloy, the plaintiffs charge
that Wilson or his staff systematically contacted an effective
majority of the Regents prior to their historic July 1995 decision
to end the university's affirmative action preference policies.
The suit argues that the Bagley-Keene Open Meeting Act, which
governs state boards and commissions including the Regents, prohibits
action taken by serial meetings -- orchestrated sequences of one-on-one
contacts used by public bodies to achieve a secret action consensus
prior to a formal public decision.
In its recent decision, the First District held that one of the
remedies sought in the case -- a court invalidation of the Regents'
action -- would not be available because the demand for corrective
action had not been made within the required 30-day period after
the alleged violation.
Molloy said he had not acted that promptly because when he first
queried the Governor's office about the matter he had been assured
by an unidentified official that Wilson had spoken to no other
Regents prior to the vote. It was only later investigation which,
Molloy said, led him to doubt that statement.
But the appellate court ruled, in effect, that Molloy had enough
grounds for suspicion within the first 30 days to prevent him
from being excused from the limitations period. On the other hand,
the court noted that the 30-day window for reaction does not apply
to the other remedy being sought, namely a court declaration that
the Governor's conduct did violate the law. If Molloy can prove
that, the Act does not prevent him from trying, the court said.
Back to top
April
Sound Retreat: West Covina Council Members Back Away From Chamber
Event
What might have been a rare controversy about "retreats" and the
Ralph M. Brown Act was averted yesterday when two members of the
West Covina City Council decided not to attend a chamber of commerce
retreat at a Fallbrook resort this weekend.
Their withdrawal meant that only two other council members would
be on hand at the West Covina Chamber's "Board of Directors Retreat"
at the Pala Mesa Resort. The Chamber had invited the entire five-member
council plus a half dozen or so city staff to take part in the
two-day conference, with topics ranging from the local business
climate to vineyard inspection.
The city did not consider the retreat a meeting for Brown Act
purposes and posted no notice of the trip. One council member
opted to stay home from the outset, expressing concerns about
the open meeting law, but the other four saw no such problems
until Wednesday. At that point a Los Angeles Times reporter began
interviewing both CFAC General Counsel Terry Francke and West
Covina City Attorney Betsy Martyn about the issue. The process
concluded with a conference call allowing Francke and Martyn to
interact directly.
Martyn argued that under the Brown Act's definition of covered
"meetings," attendance at a professional conference was excused,
so long as the event was open to the public and the body did not
huddle covertly to discuss specific business. Francke noted that
the Chamber's first response to Times reporter Richard Winton
had been that the conference was not public, and only later was
overruled by another Chamber spokesman better informed about the
Act.
Francke also pointed out that at least the first day of the event,
on Friday, would be de facto unreachable by any working West Covina
resident -- despite the city's hasty offer, once Winton started
calling, to charter a free bus for locals to reach the resort.
But Francke's main contention was that the "conference" exemption
from the Act [Government Code Section 54952.2 (a) (2)], applies
to regional, statewide or national programs (such as League of
Cities or School Board Association conventions) held specifically
for public officials or government professionals, whereas a separate
provision [Government Code Section 54952.2 (c) (3)] refers to
gatherings hosted by non-governmental groups (such as the League
of Women Voters or a chamber of commerce) "to address a topic
of local community concern."
The latter gatherings, in order to allow exempt attendance by
a city council, must be not only open to the public but "publicized"
as such, and would ordinarily be understood to be held in the
local community. Martyn never conceded the point, and expressed
surprise at the controversy. The council had gone to a similar
Chamber retreat in a beach city last year, she said, with no questions
raised. But when Francke said that CFAC might be disposed to litigate
the matter or seek a legislative clarification "with West Covina
as Exhibit A" showing the need for protecting working people's
rights to sit in on chamber-council retreats held locally, Martyn
said she would talk with at least some council members. A few
hours later the city informed the Times that only two council
members would attend.
Comment: CFAC supported Brown Act amendments in 1994 allowing
local bodies to keep in touch with professional peers at conventions
and community groups in open forums -- to prevent the Act from
being blamed for isolating councils and school boards from vital
contacts. But the same bill also made it plain that distant retreats
per se -- opportunities for a quorum of policy-makers to hear
community-specific policy presentations at remote sites that could
just as easily be made locally -- were no longer legally acceptable.
Back to top
Ayala Amends State Agency Meeting Bill, but it Fails in Committee
Senator Ruben Ayala (R-Chino) radically amended his SB 1364 recently,
and despite his reported pledge to Governor Wilson last year to
remove prosecutorial power to bring civil actions to enforce the
state agency open meeting law, converted the measure to instead
slightly adjust the standard for prosecuting misdemeanor violations.
But the bill failed passage this week (Tuesday, April 21) in its
final try to get out of the Senate Committee on Governmental Organization.
Needing six Aye votes to pass, it got only four, with two Nos
and five absent, abstaining or not voting.
Last year Ayala carried the successful SB 95, which brought many
of the 1994 Brown Act revisions affecting local government into
the Bagley-Keene Act, which requires open and noticed meetings
of state boards and commissions. But in order to get the approval
of Governor Pete Wilson (who is the first governor in the state's
history to be a defendant in a Bagley-Keene Act case), Ayala is
reported to have promised to introduce legislation that would
de-fang the effects of SB 95. In particular, the Governor apparently
complained about provisions allowing for more flexible enforcement
by prosecutors.
Ayala gave at least lip service to that pledge by introducing
SB 1364 in January. In its original form, it would have removed
the authority of the attorney general or any district attorney
(added in SB 95) to enforce the act by bringing civil actions
to:
- seek court declarations as to whether the law had been violated;
- seek injunctions against repeated future violations;
- determine whether a body had acted illegally to punish its own
members' speech; or
- require, as an additional sanction for illegal discussions or
action in closed session, that the body tape record its future
closed sessions as a deterrent.
But just before this week's hearing Ayala amended it to remove
these repealer provisions and instead alter slightly the definition
of what constitutes a misdemeanor under the Act. For many years
both the Brown Act and the Bagley-Keene Act provided that a member
of a public body committed a misdemeanor when he or she attended
a meeting where action was taken in violation of the law, "with
knowledge of the fact" of that violation. This wording invited
the excuse that the accused member had no "knowledge of the fact"
of the violation, i.e. was so ignorant of the law that the violation
was in effect innocent.
The Brown Act revisions of 1994 attempted to raise the bar by
making it a violation to attend a meeting in violation of the
Act and with the intent "to deprive the public of information
to which the member knows, or has reason to know, the public is
entitled under (the Brown Act)." Ignorance of the violation would
not necessarily protect a member who had reason to know where
the line was, but intended to cross it anyway.
No such standard emerged in SB 95 last year, however, and as of
now the misdemeanor violation of the Bagley-Keene is approximately
the same as under the pre-1994 Brown Act. But the newly adopted
amendment this week -- at this point the sole provision of SB
1364 -- would have changed the law to state:
"Each member of a state body who attends a meeting of that body
in knowing violation of any provision of this article, and where
the member intends to deprive the public of information to which
the member knows or has reason to know the public is entitled
under this article, is guilty of a misdemeanor."
Back to top
Public Utilities Commission Would Gain Secrecy Under Kelley Bill
One small side-effect of the state's deregulation of certain public
utilities is being seen in a bill that would increase the secrecy
of some proceedings of the California Public Utilities Commission.
Currently the Bagley-Keene Act, the open meeting law for state
agencies, allows the CPUC to hold closed sessions to decide whether
to take enforcement or disciplinary action against regulated utilities.
SB 2008 by Senator David Kelley (R-Idyllwild) would also allow
such sessions with respect to non-utility entities that are now
subject to CPUC policing. If such a consumer-protective investigation
were approved, any subsequent action such as hearings on the evidence
and final action would be conducted in public. But the initial
deliberation as to whether further action is indicated -- a kind
of probable cause session -- would be closed for all regulated
entities, not just public utilities.
In addition, the nature of the problem would be masked for both
utilities and non-utilities.
Under current law, when the staff prepares a report introducing
the need for investigation, the entity complained of and the general
nature of the complaint are listed on the meeting agenda. For
example, the agenda for the April 23 CPUC meeting included:
"EX-4 I________ - Order instituting investigation into the operations
and practices of Future Net, Inc., its subsidiary Future Net Online,
Inc. and its operating division, Future Electric Network; also
names as respondents two individuals who are officers and instrumental
in directing operations: Alan Setlin and Larry Huff. The respondents
are ordered to show cause why they should not be ordered to cease
marketing and soliciting for the provision of electric service
until they have registered with the Commission as a Non-Utility
Electric Service Provider under Public Utilities Code section
394(a) et seq., and why fines should not be imposed for any past
unlawful operations.
"EX-5 I________ - Order instituting investigation into the operations
and practices of two affiliated household goods carriers: Two
Guys Relocation Systems, Inc. and AAA Two Guys Will Move You,
Inc. Also named as individual respondents are Kathleen, Donald
and Scott Nutter. The respondents allegedly violated applicable
regulations and are assertedly unfit to continue holding operating
authority."
SB 2008 would eliminate such disclosures whenever the CPUC agenda
"states that (they) would jeopardize the body's ability to effectuate
service of process upon one or more unserved parties if the proceeding
or disciplinary action is commenced or that to do so would fail
to protect the private economic and business reputation of the
person or entity if the proceeding or disciplinary action is not
commenced."
In other words, stating the particulars can be dispensed with
when doing so would alert the entity in a way that would allow
it to escape a process server (if an action goes forward) or harm
its reputation (if it does not go forward). Presumably a case
could be made for the latter prospect every time.
Back to top
May
Santa Rosa Judge Refuses Meeting Injunction Sought by Newspaper
A school board's hand-picked community advisory committee is allowed
to begin meeting behind closed doors tonight (Friday, May 1) in
Sebastopol to begin screening candidates for the next superintendent.
Sonoma County Superior Court Judge Arnold Rosenfield denied the
Brown Act-based petition of the Press Democrat in Santa Rosa for
an injunction against such closed meetings in the West Sonoma
County High School District.
Board President Kristyn Appleby said she was happy with the decision,
which was "what we felt, and what we believed in all along.''
She said the advisory committee and school board separately will
interview two candidates tonight and four more tomorrow, then
hold a joint meeting for the committee to report its suggestions.
Press Democrat Editor Bruce W. Kyse said the newspaper is "certainly
going to move ahead'' in its efforts to have such closed meetings
declared illegal.
The school board in February appointed the committee of citizens
and staff members to privately interview the candidates for the
top district position. The newspaper filed suit, arguing that
permitting such panels to have closed sessions allows a favored
group of citizens to take part in the hiring while excluding the
public at large.
Still pending is another Brown Act suit by the newspaper filed
late last year against the city of Petaluma, seeking a court declaration
that its use of a closed citizen advisory process to pick a new
city manager violated the law.
Back to top
A.G.: Majority's Attendance at Committee Meetings Must be Passive,
Low-Profile
If members of the majority of a local board or commission want
to sit in on a meeting of one of the body's own committees (of
which they're not members), they need to stay silent and in the
audience.
So concludes an opinion released April 29 by Attorney General
Dan Lungren (No. 97-1207).
The opinion was written by Deputy Attorney General Clayton P.
Roche in response to queries posed by Senator Quentin Kopp (Ind-San
Francisco). It reflects one of the recurring tensions in the Brown
Act, between the need of officials like county supervisors, city
council and school board members and special district directors
to get around and stay informed on the one hand, and on the other
the need of citizens to be aware when enough of these officials
on the same body are clustering to reach critical mass in the
decision-making process.
In the Brown Act amendments of 1994, the first interest was served
by permitting a majority of one legislative body of a local agency
-- a city council, say -- to attend an open and noticed meeting
of another body within the same agency -- the city planning commission,
say, so long as the council members did not use the occasion to
discuss the matters at hand (or any other city business). This
license allowed the council to keep in touch with developments
at the commission, but prevented them from deliberating on them
prematurely, without notice to the public that such a deliberation
would take place.
In 1996, the Attorney General published an opinion disapproving
the extension of this license to allow, in the example used, a
council member to attend a meeting of one of its own sub-quorum
committees. That practice would mean that a meeting ostensibly
confined to a minority of the body -- and noticed as such on the
agenda -- would in effect be a gathering of a full quorum, permitting
the formation of a council majority consensus without public awareness.
In response, legislation authored by Senator Kopp and passed last
year as a Brown Act amendment now permits the "attendance of a
majority of the members of a legislative body at an open and noticed
meeting of a standing committee of that body, provided that the
members of the legislative body who are not members of the standing
committee attend only as observers."
Kopp's questions to the Attorney General to clarify that provision
were:
"1. May members of the legislative body of a local public agency
ask questions or make statements while attending a meeting of
a standing committee of the legislative body 'as observers' ?"
and
"2. May members of the legislative body of a local public agency
sit in special chairs on the dais while attending a meeting of
a standing committee of the legislative body 'as observers' ?"
The answer to both questions: No.
"The term 'observer'", states the opinion, "commonly means in
this context 'a representative sent to observe and listen but
not to officially participate in a gathering.' (Webster' s New
Internat. Dict. (3d ed. 1961) p. 1558). Accordingly, we believe
that the Legislature, having used the word 'only' in conjunction
with the words 'as observers,' intended to limit attendance in
these circumstances to watching and listening without further
participation. Those intending to qualify as observers under subdivision
(c)(6) of section 54952.2 must refrain from asking questions or
making statements. . . To permit observers to testify and ask
questions would let them fully participate in the deliberations
of the standing committee, rendering virtually meaningless their
restricted status as attending 'only as observers'."
Or to put it differently: allow the visiting majority to question
and comment to its committee, and you have a full-blown council
meeting reaching consensus on an issue at a meeting billed only
as a committee discussion.As to seating arrangements, the opinion
states:
"(T)he Legislature made clear that such observers were to be accorded
no special privileges. Indeed, such observers have fewer rights
than members of the general public attending the meetings, since
as observers they may make no statements or ask questions. . .To
permit legislative body observers to sit on the dais would grant
them greater rights than members of the public. It could also
create the impression that the standing committee meeting constituted
a meeting of the legislative body itself. Having the observers
sit in the area designated for members of the general public would
eliminate any confusion as to their role in the proceedings and
effectuate the Legislature' s intent of not granting special privileges
to those attending 'only as observers'."
Back to top
Committee Probes 'Partnership' Set up by Metro Water District
Majority
Don't call it Watergames -- yet.
A special committee of the California Senate this week unveiled
its investigation of a mechanism set up by a voting majority of
the board of the Los Angeles-based Metropolitan Water District
(MWD) -- and all but accused those involved of a dirty tricks
campaign against San Diego water officials.
The Senate Select Committee on Southern California Water Districts'
Expenditures and Governance held an all-day hearing Tuesday, May
19, in Sacramento to take testimony from elected officials and
staff of the sprawling MWD itself -- comprising the 27 local water
agencies in six counties which supply 16.5 million Southern California
residents -- as well as their public relations operatives and
attorneys.
MWD buys water from two main sources -- the Colorado River and
the State Water Project -- and resells it to its 27 member agencies.
The State Water Project has not provided the volume of water that
MWD had expected, leading to heavy overdrafts from the Colorado
source. Federal conservation policy will reduce future overdrafts
from the Colorado River.
Some member water agencies, nervous about the future of the Colorado
overdrafts, have begun working on their own local supplementary
sources.
The most conspicuous arrangement has been the San Diego County
Water District's deal to buy 200,000 acre feet per year from the
neighboring Imperial Irrigation District's surplus rights from
the Colorado. MWD member agencies' pay a proportional amount of
MWD's debt service and capital costs. Since San Diego currently
buys about one fourth of all the water that MWD sells, this "cost
shifting" could be a significant threat to the other districts
if San Diego reduces its demand.
Meanwhile the San Diego district must get its Imperial-purchased
water delivered though an aqueduct owned by MWD, and a "wheeling"
agreement to make it possible has been stalled for years, despite
the intervention of high-profile mediators, currently including
Governor Pete Wilson's office.
Aggravating MWD's concerns is (or at least was about two years
ago) the suspicion that the Bass Brothers, a billionaire Texas
investment group, were contributing to the San Diego district's
interest in a deal with the Imperial Irrigation District, by selling
water rights from its 45,000 acre property in the Imperial Valley,
to help release the water San Diego would buy.
Beset by what they felt was a formidable challenge to MWD's common
interests, a group of managers and directors in a dozen of the
27 districts -- representing a majority of the voting rights --
apparently have declared a political and public relations war
on the San Diego district. According to six months of research
by the committee staff and testimony and documents produced at
the hearing, this group hired a public relations firm to create
a 'Partnership for Regional Water Reliability,' which purported
to act independently of the MWD board.
The Partnership's steering committee -- an effective alter ego
of the anti-San Diego majority faction on the MWD board -- met
secretly for more than a year and worked with a public relations
firm and various of its subcontractors, whose projects included
polling designed to show a lack of public support for the San
Diego district's position, spin delivery to editorial boards,
and "opposition research" -- that staple of hardball political
campaigns which involves combing public records for information
likely to embarrass an opponent.
But in this case, several on the committee suspected, the real
point was to learn if the Bass Brothers had ever made significant
and selective campaign contributions to key public officials,
in order to use the threat of revelation to discourage their activism
in local and state legislation that would even indirectly favor
the San Diego district's Imperial water deal. Included among those
backgrounded were directors of the San Diego district and the
Imperial Irrigation District, and state lawmakers such as Senator
Steve Peace (D-Chula Vista).
Peace, a member of the Select Committee, was by turns livid and
sarcastic, badgering MWD and Partnership witnesses throughout
the day's hearings. Among those more quietly sharing the distaste
were Committee Chair Ruben Ayala (R-Chino) and Senators Jim Costa
(D-Fresno), Ross Johnson (R-Irvine), Tom Hayden (D-Los Angeles),
David Kelley (R-Idyllwild), and Quentin Kopp (Ind-San Francisco).
What Committee Chair Ruben Ayala (R-Chino) and others kept asking
throughout the day, in many ways, was: Why the Partnership? Its
members could have acted through the MWD board itself, which they
admitted they had the votes to dominate. But it became clear that
acting through the board would have been self-defeating, since
the San Diego district would have been apprised of the moves taken
against its perceived separatism.
The Partnership episode may have signaled the beginning of the
end for MWD, a 70-year old creature of state legislation that
many lawmakers of the committee seemed to think was standing in
the way of rational water security in the south state. But apart
from water issues, the committee's focus on Brown Act circumvention
and public funds used for political research may mean that new
law on those subjects will be forthcoming as well.
Ayala said there would be at least one more hearing soon, and
that a subpoena may be issued for certain public relations executives
who had failed to appear. He also said that some witnesses may
be called back for repeat questioning -- this time under oath.
The committee ended the day by calling on Attorney General Dan
Lungren to investigate whether the Partnership's meetings had
violated the Brown Act and whether its use of public funds to
check out the political vulnerability of key legislators had violated
some other law.
Back to top
Bill Would Allow Council to Attend Closed Hospital Meetings
Question: If a city council attends a closed meeting of a local
hospital board, does that fact open the board meeting to public
attendance?
Under current rules of the Ralph M. Brown Act, the answer would
probably be "yes," but then the council wouldn't have any enforceable
right to crash the board's meeting in the first place.
But if a bill by Assembly Member Sally Havice (D-Cerritos) were
to pass, there would be a real ambiguity on this question -- at
least in Downey.
Havice's AB 146, to be heard Wednesday, June 3 in the Senate Local
Government Committee, would allow the Downey City Council to attend
open or closed meetings of the Downey Community Hospital board
and all its subordinate or successor bodies, but also states that
the council's duties to observe the Brown Act are not limited
or diminished.
AB 146 is intended to cure a standoff which began several years
ago when the Downey hospital, originally built with city bond
funds and located on city property, paid off its bond debt and
obtained a 55-year, $1 per year lease from the city. One lease
term made all council members ex officio, non-voting members of
the hospital's non-profit board. But the council's twofold relationship
with the hospital -- providing a virtually complete lease subsidy
and having council members on its board -- made the board a "legislative
body" open to the public under the new 1994 rules of the Brown
Act.
The hospital, finding this access unacceptable, prevailed on Senator
Charles Calderon (D-Whittier) to carry an amendment to that law
to cure the problem. The Calderon amendment, now in the Brown
Act, provides that public agency subsidies to a private corporation
and the presence of agency officers on the recipient board subject
the latter to open meeting rules only when the agency officers
have voting power on the recipient board (which they do not in
the Downey arrangement).
But since then the hospital board has faced growing charges of
mismanagement, and on one recent occasion even excluded the council
members from a closed session. AB 146 tackles this problem not
by restoring rules which would allow anyone to attend Downey hospital
board meetings -- but simply by stating that the Downey council
may attend hospital board meetings, open or closed, and that the
council is subject to all provisions of the Brown Act.
Comment: Repealing the Calderon amendment would have the additional benefit
of allowing public attendance at meetings of any private corporate
board in the state which, for example, received funds from a city
and had a council member among its directors -- with or without
voting power. Thanks to Calderon's hamfisted favor to the hospital
district, everyone in the state has been out in the cold with
the Downeyites.
Back to top
August
Kopp Bill on Brown Act Signed by Governor; Effective in 1999
Local public agencies will have to be somewhat more explicit in
specifying who is negotiating with whom prior to certain closed
sessions beginning in 1999, thanks to Senator Quentin Kopp's SB
139, signed into law August 4 by Governor Pete Wilson.
The bill will require the agenda for closed sessions on real property
and public employee negotiations to identify those negotiating
on the agency's behalf. The intention is to prevent bodies from
using such closed sessions until and unless there is actual bargaining
going on.
Some councils or boards have made a practice of discussing the
desirability of certain real property deals, or the agency's financial
situation, in closed session on the pretext of negotiations, when
none are currently pending. A related provision requires a closed
session on employee bargaining to be preceded by an open session
in which the body names the negotiators with whom it will be conferring.
SB 139 also modifies:
The allowable use of phone or video conferencing to conduct a
meeting, by requiring that such arrangements take place only when
a quorum of the legislative body is within the agency's territory.
This would prevent a city council meeting, for example, from being
held by teleconference linking five areas around the state, with
no locally accessible anchor at which citizens could monitor the
gathering and address the council.
The notice procedures for meetings of standing or advisory committees.
Amendments to the Act effective this past January excused such
bodies from having to adopt a regular meeting schedule, and thus
from having to post an agenda 72 hours in advance. Under AB 179,
"Meetings of advisory committees or standing committees, for which
an agenda is posted at least 72 hours in advance of the meeting...shall
be considered for purposes of this chapter as regular meetings
of the legislative body." It is not clear whether this language
is meant to compel these bodies to hold regular meetings or simply
to deem any meeting as "regular" for other purposes whenever a
72-hour agenda posting is employed.
Back to top
Sunnyvale Taxpayers' Tab for Prolonged Brown Act Fight: Half a
Million?
For a case that never went to trial and involved no criminal or
civil damages threat to the city or its employees, the cost has
been fairly brutal: an estimated half-million dollars expended
or otherwise payable by the city of Sunnyvale in a failed attempt
to deny that its council violated the Brown Act in its campaign
to oust former mayor Frances Rowe.
Santa Clara Superior Court Judge Richard C. Turrone on August
4 approved an award of $235,500 to be paid by the city to the
San Jose Mercury News in reimbursement of its attorneys' fees
and costs involved in proving that the city broke the law, a conclusion
Turrone reached earlier in the year.
The award of attorney's fees to the prevailing plaintiff is, in
Brown Act cases, discretionary with the court but normally granted
in public interest lawsuits; and under the California Public Records
Act, which was also a leg of the newspaper's case, the fee and
cost award is mandatory.
But Rowe contends that the city's own attorney bills (paid to
three firms) for defending the suit and investigating her have
mounted to more than $400,000, which would bring the total bill
for the episode to well over half a million dollars.
Attorney James Chadwick, who represented the newspaper in the
litigation, said his firm had never before experienced a case
"that took this long or was this expensive." The bitterly fought
discovery phase, extending over two years, ended with a summary
judgment motion.
Jim Roberts, current mayor of Sunnyvale, said the city fought
as hard as it did to protect the privacy rights of the city attorney,
Valerie Armento. It was the latter's complaints about Rowe which
led the council to hold a series of closed sessions on the feisty
former mayor and, ultimately, exile her from city hall.
Back to top
September
Kopp Bill on Brown Act Signed by Governor; Effective in 1999
Local public agencies will have to be somewhat more explicit in
specifying who is negotiating with whom prior to certain closed
sessions beginning in 1999, thanks to Senator Quentin Kopp's SB
139, signed into law August 4 by Governor Pete Wilson.
The bill will require the agenda for closed sessions on real property
and public employee negotiations to identify those negotiating
on the agency's behalf. The intention is to prevent bodies from
using such closed sessions until and unless there is actual bargaining
going on.
Some councils or boards have made a practice of discussing the
desirability of certain real property deals, or the agency's financial
situation, in closed session on the pretext of negotiations, when
none are currently pending. A related provision requires a closed
session on employee bargaining to be preceded by an open session
in which the body names the negotiators with whom it will be conferring.
SB 139 also modifies:
· The allowable use of phone or video conferencing to conduct a
meeting, by requiring that such arrangements take place only when
a quorum of the legislative body is within the agency's territory.
This would prevent a city council meeting, for example, from being
held by teleconference linking five areas around the state, with
no locally accessible anchor at which citizens could monitor the
gathering and address the council.
· The notice procedures for meetings of standing or advisory committees.
Amendments to the Act effective this past January excused such
bodies from having to adopt a regular meeting schedule, and thus
from having to post an agenda 72 hours in advance. Under AB 179,
"Meetings of advisory committees or standing committees, for which
an agenda is posted at least 72 hours in advance of the meeting...shall
be considered for purposes of this chapter as regular meetings
of the legislative body." It is not clear whether this language
is meant to compel these bodies to hold regular meetings or simply
to deem any meeting as "regular" for other purposes whenever a
72-hour agenda posting is employed.
Sunnyvale Taxpayers' Tab for Prolonged Brown Act Fight: Half a
Million?
For a case that never went to trial and involved no criminal or
civil damages threat to the city or its employees, the cost has
been fairly brutal: an estimated half-million dollars expended
or otherwise payable by the city of Sunnyvale in a failed attempt
to deny that its council violated the Brown Act in its campaign
to oust former mayor Frances Rowe.
Santa Clara Superior Court Judge Richard C. Turrone on August
4 approved an award of $235,500 to be paid by the city to the
San Jose Mercury News in reimbursement of its attorneys' fees
and costs involved in proving that the city broke the law, a conclusion
Turrone reached earlier in the year.
The award of attorney's fees to the prevailing plaintiff is, in
Brown Act cases, discretionary with the court but normally granted
in public interest lawsuits; and under the California Public Records
Act, which was also a leg of the newspaper's case, the fee and
cost award is mandatory.
But Rowe contends that the city's own attorney bills (paid to
three firms) for defending the suit and investigating her have
mounted to more than $400,000, which would bring the total bill
for the episode to well over half a million dollars.
Attorney James Chadwick, who represented the newspaper in the
litigation, said his firm had never before experienced a case
"that took this long or was this expensive." The bitterly fought
discovery phase, extending over two years, ended with a summary
judgment motion.
Jim Roberts, current mayor of Sunnyvale, said the city fought
as hard as it did to protect the privacy rights of the city attorney,
Valerie Armento. It was the latter's complaints about Rowe which
led the council to hold a series of closed sessions on the feisty
former mayor and, ultimately, exile her from city hall.
CFAC to Support Student Paper in Open Meetings Law Suit against
Regents
The California First Amendment Coalition will join several other
organizations as amicus curiae supporting a student newspaper's
challenge to alleged unlawful serial meetings involving the University
of California Board of Regents.
The CFAC Board of Directors approved amicus participation at its
quarterly meeting this week (Thursday, September 17) in Costa
Mesa.
The amicus involvement comes at a point when the case (Regents
v. Superior Court [Molloy]) is going to the California Supreme
Court, on appeal sought by the Regents from an unpublished decision
of the Third District Court of Appeal.
The setting for the alleged violations of the Bagley-Keene Open
Meeting Act was the Regents' historic meeting in the summer of
1995 at which the body repealed the university's policies of affirmative
action preferences in student admissions.
Tim Molloy, former editor of U.C. Santa Barbara's student newspaper,
the Daily Nexus, suspected at the time that Governor Pete Wilson
had used pre-meeting phone calls and other contacts to lobby a
majority of his fellow regents into his position favoring repeal.
Such a systematic process would constitute a serial meeting violation
of the Act, he contended.
At first he was put off filing suit to have the action overturned,
he says, because of the categorical and energetic denials from
the governor's staff that any such contacts had occurred. But
then several of the regents themselves began admitting they had
been called by Wilson to learn their position on the issue. Regent
William Bagley -- a former Assembly Member and co-author of the
Act -- speculated that the lobbying had indeed taken place, but
suggested that it was a very widespread practice throughout public
agencies.
Molloy then filed suit under the Act seeking either or both of
two remedies: a declaratory judgment by the court that (assuming
Wilson was proven to have lobbied a majority) the practice violated
the law, and a declaration that, consequently, the Regents' action
in repealing the policy had been null and void. The latter remedy
would not prevent the body from promptly re-introducing and properly
conducting a repeal vote, but it would be a sizeable embarrassment
to the Regents as well as a political stain on the Wilson legacy.
But for that matter, even a court-declared violation would have
the same effect.
The Regents' defenses have been that declaratory judgment is not
proper as to past actions, only to threatened future violations,
and that Molloy was late in seeking the nullification remedy,
since for that form of relief the Act requires the plaintiff to
submit a written demand for cure or correction to the body within
30 days. Molloy argued that he delayed filing suit because the
early signals were contradictory and Wilson's office would provide
him with no phone call logs, requested under the California Public
Records Act, to clarify whether phone contacts had been made during
the relevant period.
The trial court in San Francisco agreed with Molloy that the short
statute of limitations should not apply, under the doctrine of
equitable tolling, if the defendants' own misdirection and refusal
to supply records left the plaintiff with little to go on throughout
the 30 days. Superior Court Judge David A. Garcia denied the Regents'
motion for summary judgment, leaving the way open to a trial,
and the Regents appealed.
The First District Court of Appeal rendered a divided opinion.
It agreed with the Regents that the nullification remedy had been
lost by Molloy's delay, since at some point after the first 30
day period he had enough suspicion to warrant filing an action,
but did not do so until substantially later. But it agreed with
Molloy that the declaratory judgment remedy, not tied to any statute
of limitations, was still viable.
Once again, the Regents sought review, and the supreme court is
now offered the chance to decide not only the availability of
either or both of the two remedies under these facts, but an issue
the Nexus needs resolved and that neither of the lower courts
has addressed: discovery access to Wilson's phone records or other
documentation to establish whether, and to what extent, a majority
of regents were called prior to the decisive meeting.
Comment: CFAC General Counsel Terry Francke recommended amicus
support because the Regents and Wilson have great political motivation
to prevail and show that ending affirmative action was not only
the right decision, but the right decision lawfully decided. On
the other hand, he said, if the high court were to agree with
the defendants that neither remedy was available, the result (for
both state agencies under Bagley-Keene and local agencies under
similarly worded provisions in the Brown Act) would neuter the
already hard-to-enforce statutes completely.
A body could act with illegal secrecy, keep the illegal secret
for the period until the statute of limitations had run, thereafter
be insulated from a lawsuit to overturn it, and even be free from
a lawsuit simply to declare the illegality of what had been done.
Anyone doubting that this is the core of the Regents' and Wilson's
goal needs only to read their joint brief on the merits. There
has never been a more crucial open meeting case in California,
and every organization, journalistic or otherwise, with a clear
investment in public information access should be signed on this
amicus brief.
Roger Myers, the attorney at Steinhart & Falconer in San Francisco
who is preparing the brief, can be reached at (415) 777-3999.
Back to top
October
CFAC to Support Student Paper in Open Meetings Law Suit against
Regents
The California First Amendment Coalition will join several other
organizations as amicus curiae supporting a student newspaper's
challenge to alleged unlawful serial meetings involving the University
of California Board of Regents.
The CFAC Board of Directors approved amicus participation at its
quarterly meeting this week (Thursday, September 17) in Costa
Mesa.
The amicus involvement comes at a point when the case (Regents
v. Superior Court [Molloy]) is going to the California Supreme
Court, on appeal sought by the Regents from an unpublished decision
of the Third District Court of Appeal.
The setting for the alleged violations of the Bagley-Keene Open
Meeting Act was the Regents' historic meeting in the summer of
1995 at which the body repealed the university's policies of affirmative
action preferences in student admissions.
Tim Molloy, former editor of U.C. Santa Barbara's student newspaper,
the Daily Nexus, suspected at the time that Governor Pete Wilson
had used pre-meeting phone calls and other contacts to lobby a
majority of his fellow regents into his position favoring repeal.
Such a systematic process would constitute a serial meeting violation
of the Act, he contended.
At first he was put off filing suit to have the action overturned,
he says, because of the categorical and energetic denials from
the governor's staff that any such contacts had occurred. But
then several of the regents themselves began admitting they had
been called by Wilson to learn their position on the issue. Regent
William Bagley -- a former Assembly Member and co-author of the
Act -- speculated that the lobbying had indeed taken place, but
suggested that it was a very widespread practice throughout public
agencies.
Molloy then filed suit under the Act seeking either or both of
two remedies: a declaratory judgment by the court that (assuming
Wilson was proven to have lobbied a majority) the practice violated
the law, and a declaration that, consequently, the Regents' action
in repealing the policy had been null and void. The latter remedy
would not prevent the body from promptly re-introducing and properly
conducting a repeal vote, but it would be a sizeable embarrassment
to the Regents as well as a political stain on the Wilson legacy.
But for that matter, even a court-declared violation would have
the same effect.
The Regents' defenses have been that declaratory judgment is not
proper as to past actions, only to threatened future violations,
and that Molloy was late in seeking the nullification remedy,
since for that form of relief the Act requires the plaintiff to
submit a written demand for cure or correction to the body within
30 days. Molloy argued that he delayed filing suit because the
early signals were contradictory and Wilson's office would provide
him with no phone call logs, requested under the California Public
Records Act, to clarify whether phone contacts had been made during
the relevant period.
The trial court in San Francisco agreed with Molloy that the short
statute of limitations should not apply, under the doctrine of
equitable tolling, if the defendants' own misdirection and refusal
to supply records left the plaintiff with little to go on throughout
the 30 days. Superior Court Judge David A. Garcia denied the Regents'
motion for summary judgment, leaving the way open to a trial,
and the Regents appealed.
The First District Court of Appeal rendered a divided opinion.
It agreed with the Regents that the nullification remedy had been
lost by Molloy's delay, since at some point after the first 30
day period he had enough suspicion to warrant filing an action,
but did not do so until substantially later. But it agreed with
Molloy that the declaratory judgment remedy, not tied to any statute
of limitations, was still viable.
Once again, the Regents sought review, and the supreme court is
now offered the chance to decide not only the availability of
either or both of the two remedies under these facts, but an issue
the Nexus needs resolved and that neither of the lower courts
has addressed: discovery access to Wilson's phone records or other
documentation to establish whether, and to what extent, a majority
of regents were called prior to the decisive meeting.
Comment: CFAC General Counsel Terry Francke recommended amicus
support because the Regents and Wilson have great political motivation
to prevail and show that ending affirmative action was not only
the right decision, but the right decision lawfully decided. On
the other hand, he said, if the high court were to agree with
the defendants that neither remedy was available, the result (for
both state agencies under Bagley-Keene and local agencies under
similarly worded provisions in the Brown Act) would neuter the
already hard-to-enforce statutes completely.
A body could act with illegal secrecy, keep the illegal secret
for the period until the statute of limitations had run, thereafter
be insulated from a lawsuit to overturn it, and even be free from
a lawsuit simply to declare the illegality of what had been done.
Anyone doubting that this is the core of the Regents' and Wilson's
goal needs only to read their joint brief on the merits. There
has never been a more crucial open meeting case in California,
and every organization, journalistic or otherwise, with a clear
investment in public information access should be signed on this
amicus brief.
Roger Myers, the attorney at Steinhart & Falconer in San Francisco
who is preparing the brief, can be reached at (415) 777-3999.
Back to top
November
New State Bar Board Uses Closed Session To Talk Lobbying
The Board of Governors of the State Bar of California, whose main
business for the foreseeable future is to persuade the legislature
to approve sending bills to the state's 150,000-odd lawyers for
the dues that keep the bar alive, discussed lobbying strategies
at its most recent meeting -- in secret.
According to an October 27 report in the San Francisco Daily Recorder,
in the board's first formal meeting since electing five new members
last month, "the only business decision made in open session"
was its decision to sell its downtown offices to the San Francisco
Unified School District for up to $10.75 million.
Behind closed doors, the board discussed the litigation by its
Los Angeles landlord for nonpayment of rent, several board members
told Recorder staff writer Deanna Hodgin.
But, she reported, they also admitted discussing lobbying and
legislative issues in the closed session, confirming "that a particularly
lively debate focused on what lobbying the Bar would be able to
do this year, and whether they could contract with lobbyist Larry
Doyle, who until mid-September was a Bar employee. The Bar has
drawn fire in this area in the past, when it awarded a huge contract
without competitive bidding to its former in-house lobbyist Mel
Assagai."
In fact, Assagai's contract was one of a handful of symbolic issues
that finally resulted in Governor Pete Wilson and legislators
refusing to approve the annual dues authority which keeps the
bar in operation. As of the end of the legislative session last
month, the organization has collapsed to a skeleton crew, with
no one sure how much of its activities will be revived, or when.
The bar is now seeking state supreme court approval of an emergency
assessment on the state's attorneys, just to keep a minimal lawyer
discipline operation alive.
Board members told Hodgin that the Bar sections' use of independent
lobbyists was also discussed. "We have to be very careful with
what we do with legislation this year."
But while the controlling statute of Board of Governors' meetings
lists nine topics which can be taken behind closed doors, legislation
and lobbying are not among them.
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.
Court: Panel's Nomination Process For Library Post Not Public
When a city commission holds a closed session to select nominees
for the mayor's appointment to a top agency post, its doing so
is lawful, and it need not reveal the nominees' names.
So ruled the California Court of Appeal for the First District
November 17 in Public Access Project v. San Francisco Public Library
Commission, Case No. A081426
The plaintiffs argued that under both the Brown Act and the city's
locally adopted Sunshine Ordinance, the library body acted illegally
when in a closed session it discussed and adopted a slate of three
acceptable nominees for an acting city librarian. They also contended
that these laws were violated by the body's failure to announce,
after the closed session, who the three finalists were. Instead,
the names were conveyed in confidence to Mayor Willie Brown for
selection of an appointee, pursuant to the city charter.
The superior court rejected the challengers' position, as did
the First District on appeal. The appellate court found that the
provisions of both the state and local meeting laws allowing discussion
of the "appointment or employment" of public employees in closed
session were broad enough to cover the commission's nominating
role in the appointment process. On the other hand, the required
disclosures of closed session action under the relevant statutes
do not include "nomination," the court noted, where the ultimate
action taken to "appoint" is made elsewhere.
COMMENT: The worst damage this case does to public access generally is
in its approving citation of a recent attorney general's decision
which concluded that a school board's appointed citizen advisory
committee may hold closed sessions to interview and discuss its
recommendations concerning applicants for the post of superintendent.
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December
CFAC Beacon Winner Triumphs In Court Bid To Open College Committee
Meetings
A community college chemistry professor, recognized in the first
round of CFAC's First Amendment Beacon awards three years ago
for his initiative in taking a Brown Act case to court as a non-lawyer,
has gotten a trial court to agree that a key advisory committee
at his college should meet in public.
Richard McKee, who was actually unsuccessful in his earlier Brown
Act case against a city, prevailed in mid-December in an action
he brought against the Pasadena Area Community College District.
The subject of controversy was the district's Sabbatical Leave
Advisory Committee, which meets to consider faculty members' requests
for sabbaticals and forwards its recommendations to the district
board.
The district's position was that this panel was not subject to
the Brown Act because it was not "created by formal action" of
the trustees, but instead was established by a collective bargaining
agreement between the trustees and a faculty union.
But Pasadena Superior Court Judge Richard Stoever sided with McKee,
concluding that the trustees' involvement in approving the agreement
was a sufficiently formal creative act to invoke application of
the open meeting law.
McKee himself had been a member of the committee for two months
when it voted in 1996, over his objection, to begin meeting in
closed session. He then resigned in protest.
At this writing, the district has not indicated whether it intends
to appeal the decision.
COMMENT: McKee tells CFAC that Judge Stoever, learning that he had no
formal legal training, commented that he was "a very good lawyer."
Opposing counsel was from Liebert, Cassidy & Frierson of Los Angeles,
one of the most experienced firms in representing local public
agencies.
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