Local Officials As Brown Act Whistleblowers

OPEN MEETINGS -- Is it just a temporary blip or an illusion of wishful thinking, or is the Brown Act beginning to be enforced more assertively by the very local officials whose collective action it is designed to keep in the open?

Or is this phenomenon limited to local body alumni or short-timers with little to lose for rocking the boat? Consider two recent examples of those willing to blow the whistle on their current or former peers, complaining of perceived violations of the open meeting law.  One is from yesterday's Lompoc Record:

During a closed meeting of the Lompoc Unified School District Board
of Education in June 2008, two of the members expected only to discuss
the possible hiring of an interim personnel director.

Instead,
former board members Bob Campbell and Ken Ostini said, they were
surprised by the suddenness of a motion to hire Marilyn Corey, who had
been interim personnel director in 2002, and the existence of a
proposed contract to pay Corey $500 per day.

The
actions of the board majority — Sue Schuyler, Anne Bossert and Kris
Andrews — were highly inappropriate and perhaps violated California’s
open meetings law, according to Campbell and Ostini, both of whom
declined to seek re-election in November.

Andrews, Schuyler and Bossert deny that they violated the Brown Act and are reacting strongly to the accusation.

Although
Corey wasn’t hired for that position, the discussion at the meeting a
year ago threw the board into a tailspin, symptomatic perhaps of the
turmoil it has been engulfed in for the past couple of years as it has
made deep, painful budget cuts and controversial personnel moves.

It
quickly became apparent, Campbell said, that the board majority had
been discussing personnel moves privately and reaching a majority
consensus outside of a board meeting — a clear violation of the Brown
Act.

Another is from yesterday's San Jose Mercury News:

San Jose's
planning commissioners Wednesday will formally rescind and retake last
month's vote naming Thang Do as the panel's new chairman, following a
complaint that the votes for his selection were illegally lined up
ahead of time.

The outgoing chairman, Jim Zito, said
Tuesday that he had asked the city attorney's office to investigate the
matter, first reported in the Mercury News. The attorney's office
recommended the vote be retaken.

Four of the seven commissioners
— Xavier Campos, Christopher Platten, Hope Cahan and Do — reportedly
discussed the matter before the panel's May 13 meeting, in violation of
the state's open-meeting laws. They made up the four votes backing Do
over outgoing Vice Chairman Matt Kamkar.

"I, as chair, specifically requested an investigation into this Brown Act violation," Zito said. "It's my responsibility."

The Brown Act
is meant to prevent a majority of any government panel from privately
discussing votes and other issues. Campos and Platten have said no such
discussions occurred.

The recommendation by City Attorney
Rick Doyle's office doesn't require commissioners to say whether Brown
Act rules were broken. But commissioners apparently received a notice
from Doyle's office spelling out the nuances of the law; Doyle could
not immediately be reached for comment Tuesday.

A third item from yesterday's Atherton Almanac deals not with a Brown Act violation but still a restriction of speech and participation rights by majority jealous of its control.

Two members of the Atherton City Council are accusing their colleagues
of censorship for making it harder to place issues on meeting agendas.

Until recently, Atherton had no formal process for a member of the
council to add an item to a meeting agenda, leaving it up to the city
manager to set the agenda. In March, a new policy was adopted requiring
the approval of two council members before an issue could be placed
before the entire council.

But now that's going to change. At the June 17 meeting, a divided
City Council passed new rules requiring an additional step -- not only
does a pair of council members have to agree in order to propose an
agenda item, but it will require a majority vote of the council to
authorize the item's placement on a future meeting agenda.

So, if three or more members of the council vote against a
proposed item, that item won't get on a meeting agenda and won't be
discussed by the City Council.

The vote was 3-2, with Elizabeth Lewis and Charles Marsala opposed.

"Agenda items can be very dangerous if they're not approved by the council," said Councilman Jim Dobbie.

Getting something on a council meeting agenda is important
because, under the state's open meeting law known as the Brown Act, an
elected body can't take action on anything that hasn't been placed on
an official agenda and published at least 72 hours in advance. The
rules can be cumbersome, but they serve a purpose -- to prevent the
public from being blindsided by government decisions.

Mr. Marsala said that a lot of controversial issues faced by the
town in the past few years would have benefited from a public airing,
if only he had been allowed to get them on the council's agenda.

"If there is an issue that needs to be brought out and vented,
then let that happen," he said. "I like the idea that if two council
members want to bring something to the attention of the full council,
(they can). I'm in favor of leaving things the way they are."


Terry Francke has a 35-year history of helping journalists, citizens and public officials understand and use their First Amendment and open government rights. With CalAware, Francke has authored comprehensive and authoritative guidebooks to California law on access to government meetings and public records and the news gathering and publication rights of journalists. Focusing on these issues in public forum law, he supervises CalAware's legislative and litigation initiatives; conducts workshops on legal compliance; helps design public records audits; supports local sunshine ordinance drafting efforts; writes CalAware Today, a blog on current developments and proposals in the law and best practices; and answers countless queries by phone and e-mail from citizens, journalists, public officials and employees, and lawyers.

Francke previously served 14 years as executive director and general counsel to the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association. He has served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and the 2004 ballot proposition making open government a basic right of citizens under the California Constitution.

Francke is a 1967 graduate of the University of Notre Dame and a 1979 graduate of McGeorge School of Law, University of the Pacific. Prior to his legal career, Francke worked as a weekly newspaper editor and in military and local government public affairs positions.

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