Brown Act Keeps Sun Shining on Government

In the summer of 1985, the Los Angeles City Council quietly approved “Item 53” without public posting, discussion or prior reading. An irate citizen filed a civil suit, claiming that council members had surreptitiously given themselves a 10% pay raise in violation of the Brown Act and the City Charter. A judge nullified the raise as beyond the Charter limit of 5%.

A year later, the San Diego City Council was accused of meeting secretly to discuss its $644-million budget. The district attorney was asked to investigate any criminal violation of the Brown Act, and the San Diego Tribune filed a civil suit. No criminal charges were filed, but the council settled the civil case by promising to abide by the Brown Act in the future.

Those were unusual invocations of the Ralph M. Brown Act, 34-year-old granddaddy of state “sunshine” laws designed to open public meetings to that very same public. The act, patched and refined significantly by state appellate court opinions and legislative amendments, remains effective only if volunteer watchdogs remain vigilant.

Commissioner Stalks Out

Civil libertarians and the lawyers who prosecute and defend government bodies agree that the Brown Act gets its biggest workout in smaller cities, commissions and school districts.

An example is Crescent City, where a harbor commissioner stalked out of a meeting when told that the job description for a new harbor master would not qualify as a “personnel” matter that could legally be discussed in secret. Another is the Marin County town where a City Council met while riding around in a tour bus with no room for observers.

“In small cities they are not so much attuned to the Brown Act as the larger metropolitan areas are,” said Chief Assistant Atty. Gen. Richard D. Martland, chief of the attorney general’s civil division whose office offers legal advice on the Brown Act to 15 or 20 callers every month. “We get an inordinate amount of requests dealing with very small cities or small districts.”

Convenience, observers agree, is probably a greater motivation for closed-door meetings than conspiracy.

Avoid Interruptions

“Everybody knows everybody. They kind of think, ‘Well those rules are for places where there are a lot of people. We don’t have to do that. We are a family,’ ” said Steve Barrow, lobbyist for California Common Cause, the 60,000-member citizens group that frequently goes to court under the Brown Act. “It is just easier to do business at a local cafe where they all have breakfast every day, or at a local bar.”

Councils, boards and commissions in small areas also may prefer members-only meetings to avoid loud interruptions by disruptive groups, critics say, or to cover their own ignorance and rubber-stamping of staff-prepared items.

The volunteer watchdogs--individuals, citizens groups, and newspaper reporters--diligently use the Brown Act as their key to open closed-door meetings.

“A very major issue within civil liberties is assuring that the sun shines on government, and that is what the statute is all about,” said Mark D. Rosenbaum, attorney for the American Civil Liberties Union. “Secret government by definition is elitist government which excludes the public. When the Brown Act is abused, the most obvious suggestion is that government has something to hide.”

Walter Zelman, executive director of California Common Cause and a member of the Los Angeles Water and Power Commission, said public meetings also produce better decisions because officials hear from citizens.

“Elected officials have an obligation to see that their business is open to the public, and we have an obligation to hold them accountable,” said Margaret Herman, legislative advocate for the 12,000-member California League of Women Voters, which assigns members to monitor local government meetings and urge officials to correct any Brown Act violations.

Guidance Available

The busiest monitors of Brown Act violations are newspaper reporters, said Martland and his assistant, Ted Pirm, who has sent out about 6,000 attorney general reference pamphlets titled “Open Meeting Laws.” “We act as a surrogate for the public,” said Michael B. Dorais, general counsel and lobbyist for the California Newspaper Publishers Assn., with 257 member newspapers. “The public depends on us because they are not able to attend school board meetings, city council meetings, supervisors meetings, planning commission meetings. We are there to keep them informed. We are their monitoring agency.”

For the first half of its utilitarian life, the Brown Act allowed government groups to meet secretly only for discussion of personnel matters, an exception made to ensure employees’ right of privacy. In 1968 and 1972, a state appellate court said that litigation could also be discussed behind closed doors, and the Legislature later formally added that exception.

Major amendments were triggered by the Los Angeles City Council’s surreptitious vote on “Item 53” to raise its pay, even though the court found no Brown Act violation.

Effective last Jan. 1, the latest amendments require a public posting of descriptive agendas (the mere “Item 53” would not qualify) 72 hours before a meeting except in an emergency, and provide that any individual can go to court to overturn a decision wrongly made in secret. Previous civil court injunctions were limited to preventing secret meetings in the future.

Another amendment is expected to pass this year defining the litigation exception, limiting secret sessions to discussions of a suit on file, “significant exposure” to litigation, plans to file a suit, or to determine if one of those three applies.

Los Angeles Senior Assistant City Atty. George Buchanan, who advises the City Council, considers the pending amendment “ridiculous,” claiming that it would prevent a governmental body’s attorney from steering his clients away from Brown Act violations.

“Most lawyers will keep their clients out of trouble if they smell it coming,” Buchanan said. “But they need to talk to their clients in private.”

Buchanan said passage of the amendments last year prompted a rewriting of the Los Angeles council’s rules incorporating the changes and that they have “worked like a charm ever since,” Buchanan said.

Considering himself a “strict constructionist” on the Brown Act, Buchanan stymies any council discussion of a non-agenda item even if is brought up by the public. Other city attorneys and county counsels sanction discussion, but do not allow legislative action.

But the bulk of the work in enforcing the Brown Act falls to the voluntary watchdogs--individuals, citizen groups or reporters--who can seek either criminal or civil action, or simply use their votes to oust a frequent abuser.

Since the Brown Act’s inception, violation has been a criminal misdemeanor punishable by six months in jail or a $500 fine. But no criminal conviction has ever been won, and charges are rarely filed.

“Practically speaking, it is very hard to prove a criminal violation under the Brown Act,” said Los Angeles County Deputy Dist. Atty. Steven Sowders, whose special investigations unit handles about one Brown Act request a month, but has filed no charges in recent history. “You have to prove the action was taken in secret, and taken with the knowledge that the meeting was a violation of the Brown Act.”

Perhaps five times in the last 2 1/2 years, Sowders said, he has called a government attorney to ask him to advise a group to open its meetings, solving the problem without charges. But most often, he simply explains that there is no case because there is no proof of criminal intent (knowledge of a violation) or the subject qualifies as an exception that legally can be discussed behind closed doors--personnel, litigation, public security, or instructions to a labor negotiator or real estate agent.

The law has no real criminal teeth, the prosecutor said, but he believes that is as it should be.

“These people are not criminals every time they meet in secret,” Sowders said. “You don’t want to make it so difficult for them to run their local government or you won’t have anybody standing for election.

Other Methods

“The things that really bother me as a prosecutor can be prosecuted under other laws--conflict of interest, bribery, kickbacks, extortion, conspiracy, all felonies,” Sowders said. “A misdemeanor conviction under the Brown Act is not going to remove anybody from office, but a felony conviction means mandatory removal.”

Far more common is the civil enforcement method in which an individual, a newspaper or a citizens group such as Common Cause seeks an injunction prohibiting secret meetings or rescinding action wrongly taken in secret. Failure to obey the civil order can result in contempt of court, punishable also by five days in jail and a $500 fine.

Although judges ruled that the Brown Act had not been violated, it was such a suit that overturned the Los Angeles council’s pay raise. A similar suit also resulted in the San Diego City Council volunteering to open its budget hearings, with no admission of wrongdoing, although the criminal investigation fizzled for lack of criminal intent.

Advocates and critics say the pioneer law has worked well in opening up government meetings over the last three decades. But the advocates stressed that it will continue to work only if citizens make it work.