Mar 23 2014

Brown Act Once More an Issue for City Council

When the City Council considered the appointment of a chairperson for the Public Safety Committee at their March 17 meeting, various council members recalled conducting their selection of commission and committee members in Closed Session.  However, Piedmont’s Acting City Attorney Michelle Kenyon informed the Council that the Brown Act, California’s sunshine law, had no exception for consideration of appointments to committees or commissions, including a chairperson, to be held in a Closed Session.

Kenyon’s legal opinion was questioned by Vice Mayor Jeff Weiler, who informed Kenyon that the Council had always had their deliberations on applicants in Closed Session. Councilmember Bob McBain stated that the interviews were held in a de facto Closed Session.

Weiler probed Kenyon to opine on whether the Council had previously been breaking the Brown Act law, but she declined, stating she did not have all of the facts.

The Brown Act is the backbone of public involvement in public decisions. The Brown Act details what can and cannot be discussed in Closed Session, what agendas must specify, when agendas must become public information, and requires prompt reporting of action taken in Closed Session.

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

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.”

Ralph M. Brown Act

Recently, some Council watchers have noticed the Brown Act being more closely followed in Piedmont.  Agendas now include more specific descriptions of what is being discussed by the Council in Closed Session.  Also, the legally required reporting of action taken in Closed Session has become more explicit and timely.

Previously, undisclosed Closed Session discussions and actions alarmed some residents during consideration of the Blair Park sports complex development. Only through a public records request were facts and actions revealed. A legally binding agreement between the City and Piedmont Recreation Facilities Organization (PRFO) had been approved without notice to the public. The City Council had been meeting with attorneys representing project proponents PRFO in Closed Session.

Charges of Brown Act prohibited serial meetings by council members have been made in the past.  Violations can occur when an external “point person” speaks to more than two council members and relays the information amongst the majority or three council members. Council members are prohibited from collaborating with more than one other council member.  Chains of communication, relaying information one member  to another, are also not allowed.   With specific exceptions, the law requires decisions impacting the public to be considered in public to allow the public to provide input on decisions, view considerations, and have access to information upon which decisions are based.

Workshop for Council and appointees ?-  

Piedmont has new Council members and soon newly appointed committee and commission members. A suggestion calls for a workshop involving all elected and appointed individuals to be conducted by the Acting City Attorney on the Brown Act, the City Charter, adopted Rules of Parliamentary Procedures, and Conflicts of Interest. 

Updated 4/9/2014

2 Responses to “Brown Act Once More an Issue for City Council”

  1. Other Councilmembers’ recollections aside, the interview and deliberations in past years were noticed as open, not closed, sessions. Because they have been held in the small conference room at City Hall, members of the public have generally not attended these sessions, although they are entitled to do so.

  2. The City’s standard practice for years was to misuse the Brown Act by stating that Council may not respond to Open Forum speakers because of the Brown Act. In reality, the common practice was that Mayor’s and Council members would respond if they wished but at other times stated no comments were allowed. I wrote Geoff Grote several times that the Brown Act §54954.2(2) states: “No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond.” Eventually, the policy was changed so that the Mayor may now allow brief comments. I question that this is fully in compliance.

    Concerning the sewer tax in 2012, Council apparently committed serial Brown Act violations and staff did not act within the Brown Act by arbitrarily distributing a “White Paper” in defense of the proposed sewer tax after the ballots had been published without Council directing such an action in public. When confronted by these violations, the sitting Mayor vigorously defended the City’s actions. Subsequently, the City quietly changed its policies for the next parcel tax to conform to the Brown Act.

    Beyond the legalese, the fundamental issue is the sometimes opaque climate at Piedmont City Hall. Recently, secret negotiations resulted in a gift of public funds to PRFO; City Hall had the option of choosing a more open and inclusive process. Some cities have enacted Sunshine Ordinances that go beyond the Brown Act. Berkeley requires Council documents be made available to the public 11 days before a meeting; Piedmont requires the minimal 4 days.

    I applaud PCA’s ongoing reporting of basic governance issues.

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