Archive » August 14, 2008

Lawlessness!

It’s rampant around here. And you find it where you should least expect to.

Lawlessness is not, when you get right down to it, the characteristic we want to associate with our local government. But there it is, not just right in front of our faces, but jammed in there like a thumb in our eye.

Surprisingly, it’s not the scoundrels who are the outlaws — it’s the quiet, good people without whom our government couldn’t function who break the law, again and again, in the name of doing the people’s work.

The principal law that we’re shocked to see them break with such aplomb and impunity is the Ralph M. Brown Act, California’s open meetings law. It’s the statute that governs how these well-intentioned good souls are supposed to behave, how they are required to go about the business of governing. It’s inconvenient at times, cumbersome, and packed with details that elected officials seem to find annoyingly suffocating.

 

There’s a reason those details are there — they are meant to protect us from our own government and from abuses by office holders who think they know better than we how things ought to run.

Take, for example, the board of supervisors. That august body routinely publishes agendas that inform the public that the board meets in closed session at an early hour and that the public portion of the board’s meeting, the part we are allowed to attend, begins at a later hour.

That’s not legal. A closed session actually must fall within the public session of the board’s regular meetings, giving the public an opportunity to hear what the closed session will be about, and to comment upon it if that is appropriate, then reporting to the already-assembled public in attendance what happened in the closed session after it concludes. That’s not a wish-it-were-so scenario, that procedure is spelled out in the law as mandatory.

If the public were to show up early and demand that the law be followed, how would the board of supervisors act? Hopefully, they’d follow the law. But why not follow it even if no one makes a demand? Because they’re outlaws, that’s why.

 

Here in the valley, we have the example of the Santa Ynez River Water Conservation District Improvement District No. 1. The board of trustees makes a habit of skimping on verbiage when they publish the board’s agenda.

The law requires a sufficient description of agendized items to allow an interested member of the public to figure out from the agenda what’s actually going to happen at the meeting. That’s not what ID No. 1 does.

Instead of descriptive language, ID No. 1 hides its intentions behind cryptic headings of two or three words, clearly calculated to misdirect instead of informing.

This is no small matter. It’s a problem that actually has been to court. One such case was titled Carlson v. Paradise Unified School District. An all-purpose phrase, “continuation school site change,” was used to mislead the public by hiding the fact that the school district intended to close a school and transfer all of its students to other schools. Surely the students’ parents would have wanted to know about that, and perhaps to have become involved in the decision-making process.

One of them sued over it, and the court held that the notice was inadequate — it was, in fact, illegal, and so was the action taken at the meeting. And the school district wound up having to pay the complainant’s legal expenses as well as its own, and had to go back to the beginning and do everything over again the right way.

 

Why would they ever do it the wrong way? Because they’re outlaws.

And so are the trustees of ID No. 1.

They’re outlaws because they don’t follow the law. They think it’s a fine law, perhaps, but what’s wrong with cutting a few corners?

What’s wrong is that it’s illegal — and no good can come of it.

Under the heading “Cachuma project,” with no more detail than that, the trustees intended to discuss at ID No. 1’s Aug. 19 meeting the sale of Santa Ynez Valley water to Montecito for half the going rate. Absolutely no one who did not already know what that was about could ever have figured it out.

Can this possibly make a difference? Do the trustees want the public to think them trustworthy?

The law requires the board and its agendas to be informative, not misleading or obscure. The law was not being observed in this matter, so that makes them outlaws.

What is all this Brown Act business, anyway?

Although most Californians are accustomed to hearing public figures talk about the the Brown Act, most of them don’t know what it is, or why it exists. Indeed, most public figures, though they are subject to the provisions of the act, probably know less than they should about it.

 

Earl Warren was the governor who signed the Brown Act into law. That was more than half a century ago, when it was born out of the frustration of San Francisco Chronicle reporter Mike Harris, who had spent six weeks trying to find out how local agencies conducted their meetings. He wrote a ten-part series titled “Your Secret Government” that was the impetus for the Brown Act. Clearly, the people of California did not want their government doing business behind closed doors. Just as clearly, they did not want to pick up their morning newspaper and read about deals hatched or closed in smoke-filled rooms or out of sight of the public.

In the time since the Brown Act first was enacted, it has endured several amendments and challenges in the courts. The courts generally have construed exceptions to the open meeting provisions very narrowly.

The act also has endured its share of controversy. On one side, advocates of open meetings believe, in general, that all meetings should be open, and that exceptions are not conducive to an open and deliberative process. On the other side are some public officials, who contend that the act makes it difficult to hold discussions of issues that they believe are so sensitive they ought to be left between the officials, their staffs and their attorneys.

 

But the Brown Act’s preamble, found in §54950 of California’s Government Code, states as clearly as possible the will of the people of the Golden State:

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

That is what elected officials are: instruments of the people. They are not lords, they are servants.

Full of details about how public business is to be conducted, the Brown Act is more than 13,000 words in length. Every one of them is commended to anyone who wishes to consider them. All public servants in this state should read and ponder the Ralph M. Brown Act at frequent intervals.

The point of the Brown Act is surprisingly simple: not only should government be open and honest, untainted by avarice or private ends, unfettered by arrogance, uncontrolled by strong-willed men and women and unrestrained by invisible tethers; it must appear to the public to be thus. It is not enough for the hands that do our bidding to be clean; they also must look clean.

 

For that reason the Brown Act was conceived and passed into law. It created a set of rules by which public business is to be conducted. Those rules were designed to ensure that public business is done fairly, openly, honestly, and regularly, and that public actions by public bodies are predictable and reliable.

The Brown Act’s rules can be a nuisance. They can befuddle and annoy the public. They also can seem trivial and burdensome to elected officials. The act’s provisions are fraught with nettlesome details, obstacles that slow progress and make arduous the path between good ideas and their realization.

Surely there is not a public body in the state that has not been tempted to cut a comer here or there in applying those rules. What is the harm, one might ask, of taking a shortcut if it accomplishes a worthy goal and saves the public time or money? Where is the injury if this or that agency can shorten its meeting time by half an hour and send its good-hearted, well-meaning members and employees home to their families that much sooner? What is wrong if a public notice contains the essential information, but in a form different than that which is prescribed.

 

“No harm, no foul” is a popular modern catch phrase. But res publica are not to be equated with the sport that gave rise to that phrase. The public’s business is no game, and harm can attach to the most minuscule of oversights or transgressions, not to be discovered for weeks, months or years.

In fact, it is no more difficult to take the right steps in the right order when dealing with the Brown Act than it is to learn to turn off the lights when leaving a room, or to lock the door of one’s house when one will be away, or to buckle one’s seatbelt.

And why should public officials do that? The public does not trust its elected officials because they are honest. They may be or they may not be. The public trusts them because they appear to be trustworthy, because they do expected things in expected ways. And because they demonstrate through slavish attention to detail that they are obeying the Brown Act, the public’s statement of expectations for the behavior of public officials.

When the act says, as it does, that a public agency may hold a closed meeting, but before it does that, it must convene an open meeting, announce its intentions and state what business is to be conducted in closed session, then close the meeting, only to open it again and disclose what it did in the closed session, surely it is the intent of the citizenry that the public agency will behave exactly that way.

 

And when the act says, as it does, that before a meeting can be held at all, the public agency must publish, 72 hours beforehand, a notice stating the time and place of the meeting clearly and specifically, it must be that the sovereign people of California do not want their servants fiddling, cleverly or clumsily, with alternative ways to reveal their intentions.

Agendas for meetings and hearings before commissions, boards, councils, and other agencies must be posted in a location that is freely accessible to members of the public 72 hours prior to a regular meeting. The agenda must contain a brief general description of each item to be discussed, and unambiguously state the time and location of the meeting (§54954.2). For the purposes of complying with the 72-hour posting requirement, weekend hours count as part of the notice period. However, the notice must be posted in a location where it can be read by the public at any time during the 72-hours prior to the hearing.

 

Playing fast and loose with the rules, for convenience or for whatever other reason one might imagine, gives the impression that playing fast and loose is the ID No. 1’s or the board of supervisors’ general modus operandi: the public be damned, we do what we want. If the meeting is noticed in a way that is misleading, so what? If the closed session items are kept hidden, if the public is given no glimpse of what is being done in its name, so what? If no accounting is given of the officials’ intentions, so what?

So what? Consider this: that’s what gave birth to the Brown Act in the first place. It was, in effect, a public spanking for elected officials who simply would not show respect to the people who elected them.

There is no acceptable alternative to absolute, step-by-step compliance with the Brown Act. Not compliance merely in spirit, though that is important. Compliance with the letter of the law is necessary as well, for in that is to be found public confidence.