After 60 Years, Brown Act Remains Under Fire

Despite calls for transparency, a new exemption heads to governor’s desk

By Samantha Gallegos, Special Report from Capitol Weekly

State elected officials publicly and often voice their support for open, accessible government. But they also, with no dissenting votes, recently approved legislation that would allow the governor to meet secretly with local legislative bodies.

"The question here should be why can the attorney general, district attorney or chief of police be allowed to have closed meetings, but not the governor?" said Assembly Member Steven Bradford, D-Gardena, the author of the bill. 

Passed in 1953 by the California Legislature, the Ralph M. Brown Act was written to guarantee the public’s right to attend and participate in any meetings involving local elected officials. This Act applies to city and county agencies, boards, and councils who, among other things, are required to notify the public of meetings, post agendas in advance, disclose the decisions and votes on official items, report the decisions of executive sessions, hold meetings in public and make the minutes and documents of meetings publicly available. 

The locals support the law’s goals, although their financial burden to meet the requirements of the Brown Act can be significant, especially in small communities. They also note, accurately, that state politicians who wrote the law deliberately exempted themselves from its provisions and, decades later, they are still exempt. 

State lawmakers also exempted themselves from the Public Records Act, which allows members of the public access to documents linked to state and local government decision-making. Instead, lawmakers created a separate law, the Legislative Public Records Act, which governs the release of legislative documents. Meanwhile, the meetings of state agencies, commissions and boards are not covered under the Brown Act but under a separate law, the Bagley-Keene Act. 

Now, 60 years since its enactment, the Brown Act has been changed substantially – some lawyers say weakened — over the years with a series of amendments.

And this year may be no different.

The latest legislation seeking to a change to the Act is Bradford’s AB 246, which would add the governor to those exempt from conducting open meetings in specific situations. This would include matters of security involving public buildings, services and facilities, and public access to public services or facilities. 

Bradford said the crux of his bill, which was approved in the Assembly 69-5 and 32-4 in the Senate, is the governor’s position as overseer of public safety and security agencies, such as the California National Guard, which means he too should be permitted to attend certain closed sessions. 

"This bill simply allows the governor to fully act as the commander-in-chief for all safety matters, to coordinate the National Guard with local officials in these instances,” Bradford said. “It only makes sense to allow the number one individual of the state to do this."

During the 1970s, the Brown Act was amended to allow closed sessions involving confidential briefings by law enforcement authorities. The change came in response the public turmoil at the time, which included student sit-ins of campus administration offices, bombings of public buildings, civil unrest – all an increasing worry for local officials. 

The Alameda County Board of Supervisors sponsored the changes in 1971. The supervisors said the Brown Act prevented local legislators and law enforcement personnel from fully carrying out their responsibilities because its open-access rules limited or destroyed their ability to plan for certain situations, including crimes related to civil unrest and political protest.

In the aftermath of 9/11, the ‘Alameda section’ of the bill was amended to include two additional exemptions from the Brown Act – allowing closed sessions when they involved risks to “essential public services,” and allowing confidential consultation with “a security consultant or security operations manager.”

Ultimately, the combination of these provisions has allowed more closed sessions than what the Brown Act originally intended, said Terry Francke, founder of the open-government advocacy group Californians Aware.  

“There is absolutely no need for this expansion of the scope of the closed session to include secret huddles with a governor,” Francke said. 

There was both Republican and Democratic opposition to the bill, including Senate GOP leader Bob Huff and Sen. Leland Yee, D-San Francsico.

Bradford said the law as written already recognizes the need for local governments to have private meetings with safety officials in very specific instances when sensitive information is being discussed. 

He said the heart of the Brown Act will not be changed, simply the word “governor” will be added, and that his bill would give local governments the option to meet with the governor under those same, limited conditions.

The bill is making its way to the governor’s desk to be signed into law, but there remains concern whether the addition of even a single word could cause a larger change in how the Act is used.  

The bill’s opponents question whether the Brown Act’s original purpose would be retained after this law goes into effect, and wonder whether the discourse among local bodies would change when the governor is present. 

“When you have local legislative bodies having discussions dealing with emergency situations, those should be tactical. They should be trying to resolve a problem, and it only needs to be between let’s say the board president and other members,” said Janus Norman, the political and legislative advocate for the American Federation of State, County and Municipal Employees.

Norman said that once a major figure like the governor makes a presence in those discussions, they are likely to go from being tactical to involving policy. 

A discussion with the governor at the local level that evolved into policy making occurred in 2011. This involved the Los Angeles County Board of Supervisors and the issue of realignment. 

The county prosecutor contended the meeting was a violation of the Brown Act. Bradford said in this situation that AB 246 would not have protected the governor, because it was not a matter involving public safety or security.

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