As reported in the Berkeley Daily Planet, no city official will disclose which members of the Berkeley City Council supported or opposed the possible appeal of what may be the city’s most controversial court loss this year.  The council met in closed session for more than two hours last Thursday to consider its options, and afterward all that Mayor Tom Bates would say was that it would have taken five votes of approval for the city to appeal a recent judge’s decision allowing UC Berkeley, contrary to the city’s policy, to remove dozens of trees next to its Memorial Stadium to make room for a planned athletic training center.  And there weren’t five votes, he said.  Beyond that neither he nor anyone else would clarify who if anyone favored appeal, who opposed it or whether anyone even made a motion on the matter. 

Upon a challenge to the Council by former mayor Shirley Dean—who is hoping to regain the office from Bates in the November election—to be more forthcoming, no member would comment and the city attorney said that the Council did not decide either for or against appeal.

The Brown Act states that "Approval given to its legal counsel to . . . seek or refrain from seeking appellate review or relief" constitutes one kind of "action taken in closed session" that must be reported, together with the "vote or abstention of every member present."  Moreover the Act states:

As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.

(Emphases added) It seems evident that the Legislature wanted every “collective decision” reported, even if “negative,” once there is a “motion” or “proposal.” The Council’s position, apparently based on the city attorney’s advice, is that this evident accountability thrust can be dodged simply by avoiding a vote.  Avoiding a vote, according to this rationale, excuses the Council from even explaining who if anyone favored appeal, who argued against and who simply kept silent.

That this is not consistent with the Brown Act is suggested by three points. 

First, when inaction on a clear governmental option has great consequences, the decision-maker(s) solely vested with authority to act cannot avoid accountability by claiming not to have made a decision.  A governor or a court declining to intervene in the execution of a prisoner can hardly insist that no decision was made.  Members of a Sacramento legislative committee refusing to give a bill even a courtesy motion cannot plausibly insist they are not responsible for the measure’s death. Recently it was revealed that the White House, presented last December with an e-mail from the Environmental Protection Agency with a proposed regulation of greenhouse gases as pollutants, avoided engaging with the matter by returning the e-mail unopened.  Not even the President’s staunchest partisans would deny that, whatever the legal viability of this maneuver, it could not be defended in the political sphere as neutral. The choice to take no action is not action, but it is a decision.

Second, the very purpose of the Brown Act has always been, as its preamble first declared 55 years ago, political accountability: “The people insist on remaining informed so that they may retain control over the instruments they have created.”  A self-imposed vow of silence about how members dealt with a matter of heated public controversy mocks this legislative intent, especially when disclosure would have no prejudicial effect on the city’s position in a litigated matter.  What it would do is allow constituents who want to see an appeal—the city still has about two months to file such a notice with the court—to know which anti-appeal members of the Council need to be converted.  Such an exposure of litigation decisions to popular persuasion or pressure is typically repugnant to the attorneys in charge, of course, but the Brown Act does not authorize the total blackout on lawsuit-related communications to and from the public that the attorneys would find most convenient.  And even if it did, there remains the First Amendment right to petition.

Third, speaking of constitutional considerations, the Brown Act language requiring disclosure of closed session decisions is, under Proposition 59 of 2004 (amending Article I of the California Constitution), one of those statutes that “shall be broadly construed if it furthers the people's right of access” to the meetings of public bodies such as city councils. The Brown Act provision on closed session action reporting does not make the disclosure obligation dependent on whether there was a formal vote or not, or on the form used to present a proposal for action, or whether the result was a positive or negative decision. In the light of Proposition 59, should the Brown Act language be understood to allow a local body to keep silent—and thus insulate members from either personal accountability or informed persuasion—about who made what motion(s), who provided a second and who, instead of voting No, deprived the proposal of oxygen by simply refusing to vote?

This contrived secrecy may help those who don't want their positions known, but it needn't hinder those who do.

The Brown Act forbids members of local bodies from taking it upon themselves to reveal publicly the specifics of just who said what in closed session, assuming that the discussion was lawfully confidential in the first place.  But no law prevents a member from telling the public his or her position on a matter discussed in closed session, so long as that disclosure does not reveal what the member learned from being present in the discussion.  Any member of the Berkeley City Council, that is, is free to say something like, "I'll let the others speak for themselves, but here's how I'd like to see the appeal issue resolved—and here's why."

As the U.S. Supreme Court has said, "The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance."  Wood v. Georgia, 370 U.S. 375 (1960).