SHINING A LIGHT – THE BROWN ACT AND THE PUBLIC RECORDS ACT
By Gary Redenbacher, Esq.
Barack Obama has called for a dramatic increase in the transparency of government. This is borne from the knowledge that actions conducted in secret lead to abuses of power. Lord Acton, in 1887, famously declared, “Power tends to corrupt, and absolute power corrupts absolutely.” Fraud and corruption festers and hastens when conducted in secrecy away from prying eyes.
We have recently seen national corruption cases, the most well known being former Illinois governor Blagojevich allegedly trying to secretly sell the Illinois senate seat vacated by President Obama. Power needn’t be vast to corrupt, of course. Local youth sports leaders are as subject to the wiles of power as are senators. It is, however, a bit more difficult to ferret out private corruption. In the public realm, we have two significant tools that help to prevent corruption: The Ralph M. Brown Act and the California Public Records Act.
The Brown Act is also referred to as the open meeting law. It has too many permutations to cover in depth in an 800 word column, but the gist of the law is that whenever a majority of the members of local legislative bodies gather to discuss, hear or take action on their subject matter, the meeting must be open to the public. Meetings must be publicly announced with an agenda posted 72 hours earlier. There are specific exceptions such as personnel matters or litigation.
The preamble of the Act declares, “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.” This is important to remember. Government officials serve at our behest, not the other way around.
The Scotts Valley Unified School District was accused of violating the Brown Act just recently. Embarrassingly, I am on the facilities committee where the violation was claimed to have occurred. Two trustees serve on the committee. On the day in question, both trustees were present when a third trustee came into the meeting making this a majority of the board. It was asked whether this was proper and the committee was informed that legal counsel for the District indicated that it was okay as long as the third trustee merely observed.
Shortly after the meeting, however, I received phone calls questioning whether there was, in fact, a violation. Being a mere dilettante on the Brown Act, I did some research. A “meeting” subject to the Act is “any congregation of a majority of the members of a legislative body at the same time and location… to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” There is an exception that provides that a majority of the board can attend an “open and noticed meeting of a standing committee of that body” as long as the trustees who are non-members of the committee only observe. This was not, however, an open and noticed meeting. Although not participating, the third trustee was hearing about a subject within her purview as trustee. Even though the violation was unintentional and done under advice of counsel, it was an important lesson for all of us: be more careful!
Under the California Public Records Act the vast majority of public records are available to any member of the public upon request; no reason need be given. In essence, all information relating to the conduct of the public's business is available. The legislature states, “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.”
But as with just about any law, there are exceptions, the majority of which have to do with personal information, such as addresses and phone numbers. It is not unusual for public agencies to grumble about honoring these requests. In my experience, this grumbling is not because they don’t want you to see what is in the documents, but because it is time consuming for them to produce the records. If, however, the agency balks at producing documents that aren’t clearly exempt, this is when we as watchdogs must become most alert. There is rarely a reason to object if the actions reflected in the records are above board. The courts are our friends in this battle having been quite aggressive at forcing agencies to release documents if they are not clearly within an exemption of the CPRA. They have declared that it is the best vehicle for assuring accountability amongst government officials. Although public officials who violate the CPRA are not personally liable for a violation, the agency will have to pay all attorney’s fees necessary to force the documents into the open.
It is difficult to know to what degree corruption exists within our government. The Brown Act and the CPRA are two tools that help to minimize the corrupting influence of power.
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