Law Requiring Open Meetings Often Ignored

Many local government officials routinely break the California law that requires them to conduct the public’s business in public, a veteran city attorney has asserted in remarks that support suspicions long held by outsiders that the law often is not followed.

James L. Markman, who has represented small cities in Southern California for more than 20 years, suggested to a League of California Cities gathering of about 200 mayors, city council members and city managers this year that many local lawmakers do not take the open meetings act seriously and that it would be naive to think that they generally obey it.

“Does anyone here really believe that the only time council members discuss issues of interest in the city is at open council meetings and [lawful] executive sessions?” asked Markman, who represents half a dozen cities in Los Angeles, Orange and San Bernardino counties--two more cities, he said, than any other lawyer in the state.

“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?

“I’ve got a lot of friends in this room--dear friends, [city] managers, council members I represent,” Markman continued before posing a question. “Is it unethical to know you’re constantly violating the [open meetings law, known as the Ralph M.] Brown Act? That’s a candid and fair question.”

The frank nature of Markman’s talk, which drew repeated and knowing laughter from the local officials in the audience, has created a stir among journalists and others who monitor public affairs as a rare acknowledgment by an insider that many officials hold the 45-year-old open meetings act in disrepute.

A spokesman for the California First Amendment Coalition, which has been circulating a transcript of the tape-recorded remarks, said audience reactions on the tape provide disappointing evidence of the low regard for an act that begins with a declaration of high-minded purpose:

“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,” the act begins. “The people insist on remaining informed so that they may retain control over the instruments they have created.”

At the League of California Cities meeting, when Markman asked, “Does anyone here give a real damn about the Brown Act?” the transcript shows the audience responding with laughter.

Then one participant pipes up, to more laughter, “Can we turn the tape off now?”

Reaction to Acknowledgment

Terry Francke, general counsel to the California First Amendment Coalition, a nonprofit advocacy group funded primarily by the newspaper industry, said he was not surprised to learn that local government bodies often meet illegally in private. But he said he was “astonished at the kind of bald consensus that appeared to emerge [at the gathering] about marginalizing and ridiculing the law.”

Markman said in an interview that he too saw the reaction as evidence that the law is widely viewed with disdain by those who are supposed to be governed by it and that he believes, therefore, that it should be rewritten.

A partner in the law firm of Richards Watson & Gershon, which represents 30 cities, he told the gathering in Monterey that in his experience it is the rarest public official who adheres to the law, which requires that the public be given advance notice of the matters that are to be discussed and that all but a specified few--involving such things as real estate transactions, litigation and personnel--take place in public.

Markman said that a common violation of the Brown Act involves discussing other matters in sessions from which the public is barred. “There are lots of city managers and council members who are real comfortable when the [public] meeting is over and you’re in executive session, having a free-wheeling discussion about city issues that are going on because that is the only time [part-time, small city officials] can sit down together,” he said.

Markman related, as an oddity, how he encountered a stickler for the law years ago when he served on a school board. He did not say which school board, but his resume says that he was president of the East Whittier School District Board of Education in 1977-78. The school board member, he said, would not discuss an issue with other members except at meetings. “She said, ‘I will bring my thoughts to the meeting. You bring yours to the meeting and we’ll see what happens.’ I submit, I don’t think that happens 99% of the time,” the lawyer said.

Markman said that his current clients--the cities of Brea, La Mirada, Buena Park, Rancho Cucamonga, Hesperia and Upland, according to his resume--have a variety of approaches to the law.

“Every one of these cities has a different attitude and different desires about how much compliance you give the Brown Act,” he said. “In some cities I am asked to be very scrupulous about advising on the Brown Act, and in other cities I am more often asked to devise ways to get into [closed door] executive session, if I possibly can.”

Markman said that he once found out that he was hired as a city attorney because, in the job interview, “I told them I could be very clever about circumlocuting the Brown Act.”

Markman did not tell the gathering the name of that city, nor which of the cities he represents subscribe to which philosophies of adherence. And in an interview, he also declined to provide names. But he emphasized that his role is to urge compliance with the law.

Markman also represents the redevelopment agencies of Stanton, Upland, La Mirada, Buena Park and Rancho Cucamonga, as well as the Hesperia Water District, according to his resume.

At the League of Cities meeting, he spoke on the topic “Ethics in City Hall” and attempted, he said, to draw out his listeners’ attitudes about whether they thought it was unethical to violate the open meetings law. “The 200 or so public officials in that section laughed and scoffed at some of these Brown Act prohibitions and thought they should not be observed,” Markman recalled in the interview.

He said that only two people commented that the law should be obeyed.

“When you have a law that’s held in disdain, maybe the law should be changed,” he said.

Support, Criticism of the Law

Angela Glasgow, a spokeswoman for the League of California Cities, said her organization drafted the legislation that became the Brown Act in 1953 and remains in staunch support of it. She said she was pleased to hear one city official on the tape say that the best way to follow the Brown Act is to follow it to the letter.

Markman described two provisions of the law as most troublesome. He said that the prohibition of closed-door meetings on topics other than litigation, real estate and personnel frustrates city officials and city attorneys who feel they have a legitimate need to privately discuss other kinds of contracts under negotiation. “The practical outcome is that the elected city council as a whole cannot talk to their lawyer on business matters,” Markman said in the interview. “It makes city staff more powerful because they can talk to me in private, and I think that is a very poor way for the public’s business to be conducted.”

Markman is also troubled by a Brown Act provision that, as he interprets it, bars a series of individual city council members from meeting privately with parties interested in a matter before the city council if the meetings lead to a majority of council members forming a consensus outside of a public meeting.

“Who’s going to admit that?” he said to laughter.

Violating the Brown Act is a misdemeanor of which no one ever has been convicted, Francke said.