Some notes on two pending legislative measures that would amend the Brown Act and its prescription for transparency in local government agency meetings, plus a third that would add sunshine to how the Legislature itself does its business.
When the Minutes Don't Reveal Whodunnit
Some may be surprised to learn that the Brown Act does not require local councils, boards and commissions to create minutes of their meetings; it simply provides that minutes of closed sessions may be kept, but if they are, they are not public records. And of course there are strong legal, business, practical and political reasons for the maintenance of minutes: to confirm the adoption of ordinances, bylaws and other rules and regulations; to verify approval of contracts and other agreements; and in general to manifest everything done or even considered by the body collectively and officially—and when. Accordingly, the taking, approval and preservation of minutes is an essentially universal practice even in the absence of a legal mandate. But just how much detail is included varies widely, from the diligent virtual transcript of all that is said, and by whom, to the minimalist action summary that reports only issues reaching a vote, with little or no elaboration beyond a mere label. Even sketchier are those agencies—the Association of Bay Area Governments, for example— that disclose the vote tally, but not who voted which way. Accordingly Senator Leland Yee has introduced SB 751, requiring that local bodies "publicly report any action taken and report the individual vote or abstention of every member present." The initial version of the bill put this requirement in Government Code provisions outside the Brown Act and applied them only to the highly specialized local bodies where the problem has drawn most complaint. But amendments approved in the bill's May 2 approval (7-0) by the Senate Committee on Governance and Finance place the requirement in the Brown Act itself. That means that, under Proposition 30 of 2012, local bodies may not be reimbursed by the state for this new mandated cost—which local government has been covering out of its own funds up to now in any case. Still to be clarified in the bill: What constitutes the required "public report?"
Another Try at the L.A. Supervisors' Cover Story
When two years ago the Los Angeles County Supervisors conceded they had failed the Brown Act in having several private discussions with Governor Brown about the cost of sending state prisoners back to local jails, Californians Aware accepted that acknowledgment in settlement of its lawsuit against the Board—which also involved the Board's promise not to repeat the violation. The Governor met with the Board in a closed session labeled for public consumption as concerning a threat to the public's access to government facilities. But as evidence of the grudging subtext of the settlement, as soon as CalAware filed suit the Board began a legislative drive to simply change the Brown Act to let the Governor go into closed session with local bodies on such issues. The bill to that effect, AB 1736 (Smyth) passed the Assembly overwhelmingly but failed narrowly on the Senate Floor. That proposal now resurrects as AB 246 (Bradford), which passed the Assembly 69-5 last month and now is set for hearing May 15 in the Senate Committee on Governance and Finance. CalAware's opposition letter is here.
Sacramento's Low Profiles in Courage
Several California legislators, on a bipartisan basis impossible to imagine in Washington, want to offset if not end lawmakers' occasional resort to the gut-and-amend technique of stripping a bill concerning A and pouring into it a proposal to do B, often at the eleventh hour before the measure goes to the floor of the second house for passage and referral to the Governor's desk. Such maneuvers are typically pulled late in a session to act on measures too controversial to reach compromise until the clock is running out. The result is that a bill sent to the Governor has never been exposed to a committee hearing based on adequate public notice. Controversy may have been ducked—but so is transparent process and public awareness. The authors of SCA 10 (Senators Wolk, Correa, Huff and DeSaulnier) and its companion bill ACA 4 (Assembly Member Olsen) propose to amend the state Constitution to provide that "No bill may be passed in either house until the bill, in the form to be voted on, has been made available to the public, in print and published on the Internet, for at least 72 hours before the vote." The bills would allow one exception: "if the Governor submits to the Legislature a written statement, for that bill, that dispensing with the requirement (for three days of sunshine) is necessary to address a state of emergency declared by the Governor." The top leaders in both houses are clearly and understandably allergic to this idea; after all, it strips away one of their principal tools for getting things done quickly and quietly, which is a considerable element of their power. Their candidly expressed rationale for finding these reforms to be dangerous is that if last-minute compromises poured into a gutted unrelated bill were left to be exposed for three days, pressure from the lobbying interests hostile to the compromise would pull it apart. When ACA 4 was given its first hearing in an Assembly budget subcommittee the other day, it was sidelined in a "suspense" file without even a motion, much less a vote. The committee consultant's analysis, written in effect to rationalize aborting the bill, argued among other things that fragile last-minute compromises on huge thorny issues were so vital that one of them earned its architects—the leaders of the Assembly and Senate, a coveted "Profiles in Courage" Award from the JFK Library Foundation in 2010, with the implication that 72 hours would have subverted the Big Four's deal and sent the state into insolvency. One wonders why lawmakers with so much courage would not have had the spine to fix things more transparently, and why the Assembly Budget subcommittee that heard ACA 4 did not have the spine to put the bill to a vote.