City Council members-elect responded with disbelief last week after a Los Angeles Superior Court judge granted a newspaper’s request for a court order forbidding them to meet in private, as they have done several times since voters approved cityhood March 7.
Judge Edward Ross granted a motion by attorneys for the San Gabriel Valley Daily Tribune and issued a temporary restraining order enjoining the council-elect from barring the public and press from meetings, except as permitted by the state’s open-meeting law.
Brown Act Accusation
In a suit filed last Tuesday, the newspaper accused council members of violating the Brown Act--which requires elected officials to conduct most business in public--by asking a Tribune reporter to leave a meeting March 9.
Council members-elect said they had been told by county officials, including the county counsel, that they were exempt from the Brown Act until they take their oaths of office April 18. Under this assumption, the council-elect has met in private, failed to give legally required notice of its meetings and reported its decisions as having been reached by consensus, without announcing individual votes.
Under the Brown Act, council members must conduct all business in public, except for discussion of personnel matters and pending litigation.
Los Angeles County Supervisor Pete Schabarum had earlier directed his staff not to meet with the Diamond Bar council-elect in private. But Gerald Crump, chief assistant county counsel, had said preincorporation meetings do not fall under the Brown Act. And Ruth Benell, executive officer of the Local Agency Formation Commission, had said that on election night she gave the Diamond Bar council-elect the same advice.
‘Not a City Yet’
“We’ve never tried to do anything unethical,” said Councilman-Elect Gary Miller, adding that he did not understand how the council-elect could be subject to the law. “We are not a city yet. We really can’t go out and do anything that a normal city council can do.”
But attorneys for the newspaper argued that even though the council is not legally empowered, council members-elect nonetheless have discussed matters of public concern. They cited specific decisions, such as the selection of a mayor and mayor pro tem and the hiring of an interim city manager.
“Even if we were to concede that technically this is not a city, the wise judgment is to look at the intent of the Legislature,” said attorney Stephen G. Contopulos. “The effect of this ruling is that these council members, if they are going to get together and discuss the business of the city of Diamond Bar, must allow the public and the press to be present.”
Attorney Glenn R. Watson, who represented the council members-elect, disagreed with this interpretation of the law.
“That’s baloney,” Watson said. “They have not made a single decision that is or could be binding on the city. They have (only) announced what they intend to do.”
In a meeting with attorneys in his chambers, Ross ruled that the Brown Act did not specifically address the question of elected officials who have yet to be sworn in. The judge said he based his decision on his belief that there would be no harm in granting the order to compel the council-elect to comply with the law, according to attorneys for both sides who were present.
Ross ruled that “nothing will be harmed by granting the temporary restraining order, but something may be harmed by denying it,” Contopulos said.
“What’s the harm?” Watson asked sarcastically. “What’s the harm of judges legislating when we have a Legislature in place to do that? I like to see judges follow the law.”
Tribune Publisher F. Al Totter was not available for comment but issued a prepared statement hailing the ruling as a victory for freedom of the press and public participation in government.
“With this decision, the people will now know the actions of the council-elect as they handle the city business prior to officially taking office, and the press will be permitted,” Totter said in the statement.
The temporary restraining order will remain in effect until April 6, when Ross will consider the newspaper’s request for a preliminary injunction, which would extend the order until the council members take office.
“It’ll have no effect on our meetings,” said Mayor-Elect Phyllis Papen, noting that the council held a public meeting last Thursday at the Diamond Bar Library and have two more scheduled next Wednesday and Friday at the same place. “We had scheduled that those meetings would be open to the public. . . . We are meeting next week in closed session to interview attorneys.”
One problem for the council-elect may be giving public notice of its meetings. By law, notice of the meetings, complete with issues to be discussed, should be posted 72 hours in advance at a designated public place.
“Who’s going to designate it?” Miller asked. “We have absolutely no authority.”