Californians Aware today filed suit against the Los Angeles County Board of Supervisors, challenging, as violations of several provisions of the Brown Act, the Board’s use of nonpublic meetings last fall to confer with Governor Edmund G. Brown, Jr. concerning the financial impact on the county of the impending transfer of thousands of state prisoners to local jail custody and responsibility.

CalAware’s petition to the Los Angeles Superior Court seeks a judicial finding that the Board violated several Brown Act rules, an order to comply with them in the future, and the release of any audio or video recordings of unlawful nonpublic discussions. The violations alleged include:

• At its September 20, 2011 regular meeting, authorizing a closed session conference call with Governor Brown, designating it in the minutes as a “conference with legal counsel on anticipated litigation . . . to allow the Board to call the Governor to discuss issues relating to AB 109.” That legislation, sponsored by Brown, had been enacted the previous April and about to begin implementation on October 1, sending thousands of state prison inmates to local jails andprobation supervision. This conference authorization was not listed on the meeting agenda and did not, contrary to the Board’s pro forma finding, concern an issue that first came to the attention of the Board since the agenda was posted. Accordingly, it violated the Brown Act prohibition against surprise off-agenda actions taken concerning issues already known when the agenda was posted.

• At a single-item meeting on September 21 with no separate notice to the public but later described by County Counsel as “continued from the previous day,” holding the telephone conference with Governor Brown in a closed session listed in the minutes as “Initiation of Litigation” related to a sheriff’s report on jail management under AB 109. County Counsel later said the closed session was lawful but should have been designated as a “conference regarding a potential threat to public services or facilities” as authorized in the Brown Act. CalAware contends that the discussion of AB 109 centered on financial impacts to the county, not any threat to the security of public facilities or services, or to public access to them. Moreover, even if the discussion had conformed to its agenda description, the Brown Act permits only law enforcement and security officials to be involved, not the Governor.

• At a special meeting on September 26, again conferring with the Governor—but this time in person during his visit to Los Angeles—in a closed session again mislabeled as concerning a threat to the security of public services or facilities, or to public access to them. This closed session was even more egregious than the September 21 phone conference in involving not only the Governor but, according to the agenda listing, representatives of the State Department of Mental Health and the Health and Human Services Agency.

• Unlawfully depriving the public of opportunities to address the Board concerning the September 20 surprise authorization to confer with the Governor and at the actual conferences with the Governor on September 21 and 26.

In announcing the lawsuit, CalAware General Counsel Terry Francke stated:

The District Attorney has concluded that since the circumstances prompting these closed sessions are unlikely to recur, a strong warning is sufficient—as a substitute for litigation—to discourage further Brown Act violations. We respectfully disagree.

This is not the first time this Board has disregarded the open meeting laws when doing so suited its inclinations. More than 10 years ago, in a lawsuit brought by CalAware’s founding president, the late Richard McKee, and the Los Angeles Times, the court found that the Board had unlawfully used closed sessions under various guises on three occasions, triggered by a County Counsel suggestion on how to derail a union-sponsored ballot measure. In 2004 the District Attorney concluded that the Board had used the pretext of litigation to hold two closed sessions in which it unlawfully debated and decided to close the trauma center at Martin Luther King Jr./Drew Medical Center.

Thus in a little over a decade and under the guidance of three successive County Counsels, the Board has repeatedly used Brown Act labels to mislead the public rather than to deal with controversial matters publicly. Now one Supervisor is proposing on the February 7 agenda that the Brown Act be amended to authorize the Board to hold closed meetings with the Governor and even the President of the United States.

This move shows two things: First, how fanciful Los Angeles Supervisors can become about their status in the hierarchy of government, since license for such secret conferral with state and federal chief executives is not one that the Legislature itself enjoys or would have the audacity to seek. Second, the proposal shows how it may be dawning on the
Board that its private conferences with the Governor were indeed legally indefensible. If the latter is the case, then it is time for the Board to acknowledge that fact unequivocally, or have the court declare it and, as our petition seeks, order the Board to cease its unlawful uses of closed sessions.