Rebutting the latest ill-informed attack on the Brown Act—as a “gag rule”

Joe Mathews’ March 23 syndicated column derogating the Brown Act (quoted below in italics), rife with inaccuracies and distortions, is rebutted in blue.

The Brown Act, approved in 1953, is supposed to guarantee public participation for Californians in their local governments. Instead it has become a gag rule.

False, as will appear.

The act’s requirements of advance notice before local officials hold a meeting has mutated into strict limitations on the ability of local officials to have frank conversations with one another.

False. The Act simply keeps a majority of a local board or council from getting together at some unannounced time or place to deal with their official business.

Brown Act requirements that we, the public, can weigh in at meetings have been turned against us, by way of a standardized three-minute-per-speaker limit that encourages rapid rants and discourages real conversation with our representatives.

False. These tight limits on how long citizens have to address official bodies are rules set by the bodies themselves, not by the Brown Act.

The Brown Act has empowered professionals outside the civic space – lawyers, labor unions and especially developers – to fill the conversation void.

False. When these professionals get more opportunity to publicly persuade officials it’s because the officials give it to them, not because the Brown Act has “empowered” them to get special treatment.

At a UC Irvine conference on the Brown Act in which I participated, speakers discussed how local officials, wary of talking to or even emailing each other and violating the Brown Act rules against unannounced meetings, often communicate through developers, who are much freer to meet and talk . . .

False in two ways. First, it does not violate the Act when officials communicate with one another outside their official meetings so long as they don’t use these contacts to develop a majority consensus behind the scenes to do—or not do—something without the public’s knowledge or opportunity to participate. Certain agency staff or attorneys will often wave the red flag of a potential Brown Act violation to keep the elected or appointed decision-makers from having any contact with one another outside official meetings, because that contact could weaken the monopoly on information and ideas that the staffers or attorneys cultivate to maintain their power. In fact, in the nearly two thirds of a century it has been the law, the Brown Act has seen just one criminal prosecution for an alleged violation go to trial, and that resulted in a hung jury. And proven violations have led to just one civil judgment voiding the action taken.

            Second, if it’s true that officials use developers as go-betweens to reach decisions, that practice is expressly forbidden by the Brown Act, and a violation could well mean criminal liability if prosecuted.

In this era of government by negotiation, the Brown Act is unhelpful when it’s not beside the point. First, the act’s limits on meetings end up restricting the ability of elected officials to participate fully in such negotiations.

False. This inflexibility is created not by the Brown Act, which would permit an entire local body to bargain face to face with any employee union, litigation adversary or property vendor, but by other laws limiting negotiation to indirect interactions through bargaining agents or lawyers.

Second, the Brown Act covers only public meetings, and thus doesn’t get people into meetings where city officials make decisions behind closed doors. All too often the public hears about negotiations only once deals are done, and brought to a public meeting for approval.

Misleading. The Brown Act does not compel closed sessions. It permits them but requires notice to the public before and afterward as to what if anything was decided.

Consulted only at that late stage, California citizens understandably respond by opposing their local politicians uncompromisingly. In this way, the Brown Act encourages the worst sort of NIMBYism.

Point taken.

Many ideas have been raised for changes in the law. But the act has created a regime so antithetical to the goal of public participation that it might be better to scrap it and start over – by providing local governments with flexibility as long as they pursue policies that enhance public participation in decisions. The National Civic League has a model participation ordinance that would fit the bill.

False. Nothing in that model ordinance conflicts with the Brown Act. In fact the Brown Act expressly allows entire local government bodies to attend “a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency.” In other words, if the body attends as a scheduled public participant in such a community discussion, its members are free to discuss program topics “of a specified nature” with one another as well as with other participants.

Who could oppose such sensible changes? Answer: Civic and media organizations are suspicious that reform would limit access; they claim local officials are being overly cautious in limiting conversations because of fear of Brown Act violations. But the caution is well-advised, given how easy it is to sue for violations of the act, and thus block important projects.

False. It’s anything but “easy” to sue and next to impossible to “block important projects” using the Brown Act.

In the meantime, the everyday reality of California public meetings grows ever more absurd. At my local school board, our city’s mayor recently asked questions about the management of a newly approved school bond, the largest in our small district’s history. But the board members wouldn’t answer her. Instead, they cut her off after just three minutes, the limit on public comment. The school superintendent said that any exchange could be a violation of the Brown Act.

The superintendent was wrong. The board could have directed staff immediately to answer any factual questions and/or placed the mayor’s issues on the next meeting agenda to allow free interaction between her and the board, and in any event could have waived its own three-minute rule to accommodate the scope of the mayor’s questions.

Any law that won’t let a mayor and a school board talk freely about their city’s most important construction project isn’t worth keeping. Until our local governments move past the Brown Act, Californians won’t be able to have the conversations that local democracy requires.

In summary, it’s not the Brown Act that is the problem but the ignorance or distortion of the Act by officials who view it as a threat or nuisance to them rather than a protection of the public. And as for “conversations that local democracy requires,” nothing in the Brown Act prevents the development and implementation of a complementary public participation ordinance.