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Kenneth F. Bunting Headshot

Is Brown (Act) Out in California? Time May Tell

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COLUMBIA, Mo. - City councils, public commissions, county and school boards and special district governing bodies in California may continue to hold their meetings in the figurative "sunlight," as well they should.

But in an action that has received little notice except for niche blogs, the 59-year-old "Brown Act," the state open meetings law that compels them to hold most deliberations, discussions and decision-making sessions in public, was largely eviscerated four weeks ago.

The legislature had its reasons -- too little money, supposedly -- and I will try and restrain my inner cynic and its tendency to see more sinister motives. But a series of recent events provides a sound and ample context for those suspicions.

Five months before the Legislature suspended key provisions of the Brown Act, the district attorney's office in Los Angeles County informed the Board of Supervisors that a meeting it had held behind closed doors with Gov. Jerry Brown was a clear violation of the state's open meeting law. The DA took no follow-up action. And, while government leaders in the most populous county in the nation's most populous state may have been a bit chagrined, their public posture was anything but apologetic.

Then, just two months before the Legislature gutted the Brown Act, Los Angeles County settled a lawsuit brought by Californians Aware (CalAware), a nonprofit advocacy group that promotes governmental accountability and openness, over that meeting with Brown--and two other illegal meetings last September.

In that lawsuit settlement with CalAware, LA County's governing body admitted that it had held three illegal, closed-door meetings during the month of September, among them the one with the governor in attendance and another with him conferenced in by telephone. In addition to those admissions, the Supervisors agreed to mend their ways, release transcripts of the three illegal meetings and pay CalAware $14,750 for legal expenses it incurred in bringing the lawsuit about those rather flagrant violations.

Open government advocates in California are among the most sophisticated outside the Washington beltway. In court, they have enjoyed a won-loss record their counterparts in most other states consider enviable.

CalAware may well have thought it could chalk up yet another victory for access when it reached the lawsuit settlement with LA County last April. Little did CalAware and its supporters know that their victory would be virtually undone by the California Legislature just two months later.

After the DA issued its scolding but inconsequential reprimand letter declaring that the reasons for making the meeting secret did not satisfy legal requirements, the Supervisors' closed-door meeting with Brown, which dealt with a controversial plan to move state inmates into county jails, got attention in the Los Angeles Times, and in columns I wrote for the Huffington Post and for the NFOIC website.

By contrast, the legislative action by which most legal experts agree key provisions of the Brown Act have been rendered virtually unenforceable received scant initial attention except for blogs on sites of press associations and First Amendment and open government groups. More recently, there has been some modest media attention, as municipalities across the state have issued statements vowing to continue operating openly and posting agendas.

The Brown Act is named for Ralph M. Brown, a former state assembly speaker who is no relation to the current governor or his father, also a former governor.

The legislature's supposed justification for suspending the Brown Act is that complying with the openness and advance notice requirements of the law is simply too costly. Under the state constitution, the state is supposed to reimburse local governments for "mandates" it imposes upon them.

The First Amendment Coalition (FAC), another California group that advocates and pushes for open government in the state, said local governments "would be foolish not to continue" meeting the openness and advance notice requirements of the Brown Act. But a blog on the FAC web site also agreed that those key provisions "are not currently enforceable" with the indefinite legislative suspension in place. FAC, like CalAware, is not shy about bringing lawsuits when governmental agencies disobey or try to skirt transparency laws.

CalAware is taking no chances. It is circulating an online petition asking civic-minded Californians to urge legislators to "Free the Brown Act from Budget Suspense!" It has also alerted its followers to be on the lookout for local governmental entities that practice these time-tested abuses:

"Ambush actions," where policies and ordinances are passed without mention on agendas, being portrayed as emergency measures, even when there is no real urgency.

"Misleading/mislabeled actions," where local bodies adopt measures with scant resemblance to what is listed on their agenda, and;

"Incomprehensible agendas," where convoluted and legalistic language masks the intent of an action that would be controversial if people understood it.

CalAware's General Counsel Terry Francke warns that for the time being, with the key provisions of the Brown Act suspended, it would not be possible to bring successful lawsuits against local governments that flaunt the open meeting requirements.

Should Californians who care about government transparency be worried? Taken and considered together, the LA Supervisors' shameful behavior, the DA's wrist-slap reprimand and the legislature's action in suspending key Brown Act provisions suggest they should be.

The supposed justification for holding the September 26 meeting in secret was that it dealt with a matter related to public safety. But the transcripts that came to light as a result of the CalAware lawsuit, show that the stated justification for the secret meeting was a laughing matter for those in attendance.

The transcript shows that those in attendance -- including the supervisors, the governor and the county counsel -- paid considerable attention to how they would couch their justification for secrecy to make it appear to fit the requirements of the Brown Act.

Gov. Brown: "Let's get our Brown Act cover story."

County Counsel Andrea Ordin: "You may have folks out there who want to ask questions."

Supervisor Gloria Molina: "There's press waiting in the lobby so we need to know."

Thanks to the transparency the CalAware settlement brought, Californians get a first-hand look at the behavior of their public officials.

California's voters may yet write the final chapter of the "Brown Act cover story." A tax-raising ballot initiative proposed by Gov. Brown himself would, if passed, exempt the Brown Act from the state's unfunded mandate requirement, which has not been strictly enforced in recent years anyway. And, if CalAware's petition is successful, a measure still pending in an Assembly committee will eventually allow voters to constitutionalize the suspended notice and disclosure requirements, removing any doubt about their enforceability in the future.

Ken Bunting is executive director of the National Freedom of Information Coalition (NFOIC) at the University of Missouri School of Journalism. He is a former reporter and top editor who worked for the Fort Worth Star-Telegram, the Los Angeles Times and the Seattle Post-Intelligencer, among other newspapers.