Californians Aware today filed a lawsuit seeking a court declaration that the Los Angeles Board of Supervisors violated the Brown Act last August when its members privately and serially signed letters to the Legislature and the Governor opposing a bill intended to strengthen . . . the Brown Act.
The petition in Californians Aware v. Los Angeles County Board of Supervisors also seeks a court order prohibiting the Board from using a series of communications, either directly or through intermediaries, to discuss, deliberate, and take action on specific legislation, outside of a noticed and public meeting.
CalAware went to court, according to General Counsel Terry Francke, only when the Board rejected its demand to publicly renounce the practice of discussing or acting on legislative issues outside of open and public meetings.
County Counsel Mark Saladino takes the position that the personal signature gathering, accomplished by walking the staff-drafted letter opposing the bill from one Supervisor’s office to another, was a mere formality. The Board’s opposition, he says, was already approved in two previous ways.
First, it acted by its December 2013 adoption of a general policy platform for the 2014 legislative session which authorized staff to oppose any legislation creating an undue burden or cost on county operations, but which mentioned neither the Brown Act nor any legislation concerning it.
Second, it acted by receiving with no objection a succession of memos to the Board from the executive and lobbying staff, tracking the progress of AB 194 and indicating an intention to oppose it “unless otherwise directed.” The memos were never discussed at open meetings of the Board, which never saw any mention of AB 194 on their agendas either; instead, the memos were posted on the CEO’s website.
AB 194 by Assembly Member Nora Campos of San Jose dealt with the various obstacles used by local government bodies to frustrate or impede citizens’ attempts to address them at their meetings. As introduced, the bill would have made it a misdemeanor to deny citizens their rights to address the body. As first amended, it would have made such denial a violation for which a court in a civil action could void any action taken.
As finally amended, the bill dropped these remedies and instead simply prohibited certain practices used to frustrate citizen comments to the body.
Subject to reasonable regulations promulgated pursuant to subdivision (b), the legislative body of a local agency, or its presiding officer or staff, acting in their official capacity on behalf of the legislative body, shall not prohibit, limit, or otherwise prevent any of the following:
(A) Public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body or its officers or employees acting in their official capacity.
(B) Comment by a member of the public during presentation of an agenda item who has not provided notice of his or her desire to comment prior to consideration of the agenda item by the legislative body.
(C) Comment by a member of the public based on his or her viewpoint where the comment is within the subject matter jurisdiction of the legislative body.
(2) If a legislative body limits the total amount of time allocated for public testimony on a particular issue or for each individual speaker, the questioning or interrupting of the speaker by the legislative body, its officers or employees, and the speaker’s response to questioning shall not reduce the total time allocated for public testimony on the particular issue or allocated for an individual speaker.
Despite the bill’s allowance for reasonable regulations of citizen speech, the letter sent over the Supervisors’ signature warned that its passage would threaten local bodies’ ability to control their meetings.
After the Supervisors sent a similar letter to Governor Brown, he vetoed it.
County Counsel Saladino, in rejecting CalAware’s demand for a public commitment not to take action on specific legislation outside public meetings, said that the Board’s executive officer had been advised that any personal signature letters on specific legislation should be placed on the agendas of public meetings.
You offer, as a compromise in lieu of compliance with our demand, that the CEO has been advised that authorization for fiveI-signature letters should be placed on the Board’s agenda in advance of or during the County’s legislative or advocacy efforts with respect to particular bills. This inconspicuous administrative adjustment is no substitute for the statutorily prescribed alternative to litigation—the Board’s publicly undertaken unconditional commitment to cease, desist from, and not repeat the practice of approving, and communicating to the Legislature, the County’s position on a legislative bill without any discussion in an open session of a Board meeting concerning either the bill, its content or the County’s proposed position.
The problem of handling legislative action by authorizing staff to take specific positions on particular bills “unless otherwise directed,” Francke said, is that
it allows the lobbyists to put the County on record as supporting or opposing specific bills without express approval or direction from the Board.Consequently, no one in the community trying to track the Board’s legislative posture on specific bills by monitoring its meeting agendas, discussions or minutes is able to do so. Moreover, the backstage memo briefing allows the CEO to quietly cite far-fetched “sky-is-falling” scenarios from the Board’s Executive Office and County Counsel that would, if presented at a public meeting, undoubtedly draw public criticism.