Open-meeting is often a tough act to follow

June Casagrande

A city councilman approaches each of his colleagues in turn and says,

“I would like to be mayor. I hope you will support me.” He does this

in a city where mayors are selected by a vote of the council during a

public meeting. He does it a month or so before that meeting.

Is this a violation of the state’s open-meeting law?

These are the types of questions Terry Francke, general counsel

for the California First Amendment Coalition, fields every day from

reporters and from members of the public worried that officials are

conducting public business on the sly.

The question above is an actual example: This reporter asked

Francke whether Newport Beach City Councilman Tod Ridgeway’s remarks

to his fellow council members are permitted by the open-meeting law.

Ridgeway, like many Newport Beach council members past and

present, told colleagues he would like their support when they vote

for a new mayor tonight. But the often-misunderstood and sometimes

vague open-meeting law leaves observers scratching their heads as to

whether this type of canvassing is legal and appropriate.

The short answer, Francke said, is yes: Ridgeway and other council

members are clearly within the rules in approaching colleagues this

way. But, had Ridgeway approached the matter differently, it would

have been easy to cross the line.

Freshman Newport Beach City Council members all get a crash course

in the open-meeting law known as the Ralph M. Brown Act, or Brown Act

for short. The state act is designed to ensure that government

decision-making at the local level is done with as much public

awareness and input as possible.

“In this city, we’re very sensitive to these issues,” Ridgeway

said. “You’ve got to use some common sense. You can’t hire an

attorney every time you do something, but you have to be careful how

you make a request.”

OUT IN PUBLIC

The Brown Act requires local governments to announce meetings

publicly in advance, and it forbids bodies such as city councils and

school boards from making most decisions except in public meetings

with public input. The Brown Act describes a meeting as “any

gathering of a majority of the members of a covered board to hear,

discuss or deliberate on matters within the agency’s or board’s

jurisdiction.”

For example, if four members of Newport Beach’s seven-member city

council got together for a cup of coffee to discuss who would be the

next mayor, that would be a clear and blatant violation of the rule.

The act allows closed meetings to discuss hiring and some other

personnel matters, some pending litigation and some property

negotiations. In each of these cases, the idea is that the meeting

can be held in secret when public knowledge could affect the outcome:

If it’s widely known that a city wants to buy a piece of property for

$1 million, that could affect the price on the open market.

But there are gray areas that make it tricky for officials,

residents, reporters and even attorneys to know what’s OK and what

isn’t.

If Ridgeway had gone to a colleague and said, “I want to be mayor.

Two other council members have already agreed to support me. Will you

support me as well?” that would amount to a majority of council

members making or attempting to make a behind-the-scenes decision.

That would be a violation of the law, even though they didn’t all

meet at the same time.

DIFFICULT TO ENFORCE

When there are violations of the law, enforcement is difficult.

Most violations are civil matters, but in some cases, violations are

misdemeanors that carry criminal penalties. In the 50 years of the

act, however, no one has been convicted of a criminal violation,

Francke said, because the burden of proof is daunting. Criminal

violations occur when meetings are held in secret with the deliberate

intent of making policy outside the public eye.

Civil violations are also tricky to punish. In extreme cases, a

court can overturn a council or school-board decision if a prosecutor

can prove that the decision was arrived at in violation of the act.

More often, though, the best a prosecutor can do is obtain an

injunction against a body to stop it from making public decisions in

private in the future.

This can be very frustrating for members of the public who were

denied an opportunity to speak on some matters. If a body makes a

decision after denying members of the public opportunity to speak,

usually all that can be done in the aftermath is to get a court to

issue an injunction.

The most powerful enforcer of the Brown Act, Francke said, is the

court of public opinion.

“Press coverage itself is, I believe, the single biggest

protection for the rights guaranteed by the Brown Act,” Francke said.

“A typical member of a legislative body does not want to be accused

of violating the Brown Act in the press.”

An ongoing battle in Costa Mesa is a case in point.

The Daily Pilot on Oct. 24, 2002, reported that Asst. City Atty.

Tom Wood had written an opinion that a Sept. 9, 2002, meeting of most

council members violated the Brown Act.

The meeting began as a routine performance evaluation of the city

attorney and city manager, but council members present ended up

taking some farther-reaching actions. They decided to place Wood and

then-City Atty. Jerry Scheer on paid leave, to create a subcommittee

to further review their performance, to audit the city attorney’s

office, and to halt all business with an outside firm.

Wood has since backed away from the comment, saying that it wasn’t

intended for the public and that it’s not his place to pass such

judgments on his own bosses.

There has been no official ruling on whether council members

violated the Brown Act, and such a ruling might never be made.

“A good many people, for understandable reasons, believe that the

Brown Act addresses every possible restriction on public

participation that can be imagined or that it addresses every last

question about how meetings are to be conducted,” Francke said. “It

certainly doesn’t do that. It covers a great many, but a good many

other things are either not addressed in any law or set of rules or

are matters of parliamentary procedure rather than issues addressed

under the Brown Act.

“It simply doesn’t address all the things that people feel are

unsatisfactory about how meetings are conducted,” Francke said.

* JUNE CASAGRANDE covers Newport Beach and John Wayne Airport. She

may be reached at (949) 574-4232 or by e-mail at

[email protected].