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CalAware’s President Emeritus Rich McKee, a chemistry Professor at Pasadena City College, is not as active as he was several years ago in reminding local councils, boards and commissions in southern California about their open meeting obligations under the Brown Act.  Although not a lawyer, McKee made it his fond avocation to urge, threaten litigation if necessary, and ultimately represent himself in lawsuits to see that the Act was respected.  He was even successful in going to the Court of Appeal, resulting in published decisions establishing that meetings of the governing body of a Los Angeles area joint powers network of drug law enforcement units are subject to the open meeting laws, and that anyone in California has standing to sue any local agency in California for violations of the Brown Act—with no residency requirement. 

Rich has not been as active so consistently to enforce the Brown Act in the last year or so, but he notes that a recent “issue with Whittier was the kind of thing that used to really irritate me, so I just had to do something.”  He forwarded to CalAware four documents which “in chronological order . . . are offered to illustrate the modest change you can make if you're willing to engage secrecy, consciously or unconsciously used by local government, that removes public input from decision-making.”

He refers to an initial news story reporting the public reaction to seeing trees cut down in a residential neighborhood because of a closed session decision; the letters from a nearby couple stating their health concerns that were used as justification for taking the matter behind closed doors as an instance of potential litigation; McKee’s own letter challenging this secretive approach and demanding a cure or correction; and a follow-up news story showing the city’s concession that the closed session was not called for.

McKee says these items document “one of those little successes that, could we put together enough of them, might have a real impact in the fight for greater openness in local government.  After all, it didn't really take much time; just three weeks from the first newspaper story to the city attorney's letter admitting they could have done better, and will in the future.”

More than anything, McKee says, his reason for sharing the incident is his “wish that more people could be motivated to do this in their local community.  Not because they didn't get their way, but just because openness and involvement are good for everyone.”

One way of looking at McKee’s attention to even the smaller deviations from transparency law is to think of them as examples in the governance realm of the “broken window theory.”  That concept, invented by scholars but often associated with the decline in felonies under former New York Mayor Rudy Giuliani, holds that giving prompt attention to relatively minor transgressions (broken window or graffiti vandalism, jumping subway turnstiles to dodge fares, etc.) preserves a sense of intolerance for disorder that discourages more serious offenses.

However criticized the theory may be as the sole or even dominant explanation for the reduction in New York felonies under Giuliani, its Brown Act parallel is fairly evident.  Local bodies that know they’re being monitored by informed watchdogs who will not hesitate to challenge them firmly on perceived violations of the open meeting law are probably less likely to engage in serious breaches.  Conversely, at least some local bodies that are relatively free of steady public attention—be it from cable TV viewers, news reporters or civilian watchdogs like McKee—are far more prone to conclude that few care or even know what they’re doing, and that the Brown Act is of little concern.

Few people can be expected to match Rich McKee’s mastery of the Brown Act and both readiness and success in litigation.  But as he points out, you’re less likely to have to sue if you speak up about lapses from the law, and do it based on correct analysis—CalAware can help you there—and polite but firm insistence.  As New York’s Metropolitan Transportation Authority says in a very different context, “If you see something, say something.”