Letter: Let’s understand the Brown Act better

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The state government code provisions known as the Brown Act mandate open meeting decision-making as the norm, allowing closed meetings only under defined exceptions with specific restrictions.

It’s not true certain matters (e.g., personnel and litigation) require closed sessions. Rather, closed meetings and confidentiality on any topic are narrowly limited to prevent abuse of secrecy. In addition, elected members have a statutory right under the Brown Act itself to challenge meeting closure publicly.  

Typically, elected local government officials are civic volunteers, with no experience in positions of public interest responsibility. That is why the Brown Act was enacted to provide procedures for elected officials, District Attorneys and Superior Court judges to correct non-compliance before more formal legal consequences are imposed.

In most non-compliance scenarios, most elected members rely on advice from city or school district senior staff and legal counsel, who do not have the same legal duties as elected officials under the Brown Act. As a result, the de facto standard adopted too often isn’t what is right under the open meeting law, but what the majority can get away with under cover of staff advice.    

Still, under the Brown Act, it is a misdemeanor crime for an elected member of the city council or school board knowingly and intentionally to abuse closed meeting procedures to prevent public disclosure of information and decision-making that properly should be made in public under the law. 

The most common abuse of closed meeting authority is to conduct business in closed meetings as a tactic to silence minority members on matters that otherwise should have been determined in an open meeting. As such, a Brown Act violation is hard to define, but if you are familiar with the law, it is easier to know it when you see it. 

That is what happened last year when a majority of our city council accused two minority members challenging meeting closure of breaching Brown Act confidentiality. It became a pop-goes-the-weasel moment when the DA instead threatened to prosecute the council majority for non-compliant meeting closure. 

Only because the city attorney, in effect, admitted misleading the council was prosecution averted. Even though the DA alleged no confidentiality violation, the council majority still censured one of two minority members.   

By understanding the Brown Act better, we all surely can do better in the future to unite rather than divide our community.

Howard Hills, Laguna Beach

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7 COMMENTS

  1. Howard a little over 12 months ago, I sent an email to then City attorney Kohn. I copied the City manager, and the director of community development along with the city council. The email was regarding information on a parcel that was issued a CEQA exemptions by the lead agency. I believed the information would help provide clarity to the lead agency, Laguna Beach that the exemption was invalid, and in violation of CEQA code, and that this behavior is standard practice in Laguna Beach. In short, we have no standard, the city fails to follow published CEQA guidelines. As well as practices recommended by CDFW. 5 hours later Kohn sent me an email and it included this comment. “I would like to point out the potential such communiques as you sent have created for a violation of the Brown Act, of which you might not be aware. Among other things, the Brown Act prohibits meetings of legislative bodies that do not comply with notice, agenda and open-to-the-public requirements. A “meeting” takes place whenever a majority of the members of a legislative body (which would include the City Council and the Design Review Board) engage in discussion, deliberation or action on items of official business. A meeting is not confined to an actual gathering of a majority of members at one time. A meeting can also occur through a series of communications that ultimately and collectively encompass a majority of the members. Your recent messages to members of the City Council carry the danger of resulting in a serial meeting when the “reply all” button is employed. This is another reason why it would be appreciated if future messages can be send to staff, who, as indicated above, will include such communications in staff reports to decision-making bodies.”

    Several attorneys and research made it clear to me that it is impossible for me, a resident with no affiliation with any group or legislative body to be in violation of the Brow Act. Kohn was attempting to intimidate me, and prohibit my freedom of expression in the opinion of two attorneys. One of which was a constitutional attorney. In addition to my response to Kohn, I filed inquiry requests three weeks later with the OC DA’s Special Investigation Unit, The US Department of Justice, and the California State Bar Association. Two of the three opinions I received back recommended I file litigation. Two days after my contact with the DA’s Office, I received a letter confirming my investigation request with that office a second time. That same evening in January I was informed that Mr Kohn, earlier that afternoon announced his retirement.

    Frankly. I believe that our city council needs self investigations as did the city council’s in Anaheim, Bell and the City of Los Angeles to examine practices, behavior and potential civil, and or criminal activities. In my opinion our council not only fails to communicate with voters and respondents, but there is a long list of acts that could indicate actions that are interfering with state and federal permitting and take fee’s.

    Our Council proceeded to re appoint Mayor, and protem from 2018 to the present citing the need for experience. What I see is a form of monopolistic behavior in public service based upon influence and opportunism. Our property rights, public and personal safety, view and real property equity along with our thoughts and voices are ignored. Two sewage spills within two weeks and approval on projects like Sweetwater confirm that our preserved green and blue belt heritage are at grave risk. As is our health.

    Your letter to understand the Brown Act better is essential. I believe Council self investigation is as well.

  2. Doug, this was not a legal personnel matter, TRUE! Nice of you, however to apologize for Kohn, the former mayor and protem, who is mayor yet again. This delightful cabal continues to get re appointed mayor again and again and again. Not exactly Democracy! What is Laguna Beach? Is it a charming Monarchy. Thank you, next speaker!

  3. Doug, you I had the same impression, and for a long time I thought same as you. But that was because that’s what was told by School Board members, who were misinformed deliberately but learned paid off politically to practice the same manipulative strategies used by law firms that prey on School Boards and City Councils. The lawyers and consultants who know better but tell us and our elected representatives that meeting closure is routine and required do so not to create a culture of humane discretion but too often abuse of bureaucratic secrecy. School Board and City Council lawyers drive up fees by convincing elected leaders and people like you and me that vigilance about closing meetings and secrecy is more important than vigilance about open meetings and accountability to public.

    Like me you were told and believed meeting on personnel matters must be closed. But if that were true it would apply to positive as well as adversarial personnel matters. There could be no praise for teacher performance awards in open meeting. Indeed, when there is a controversial adversarial personnel matter that the Board wants to deal with behind closed doors, the Brown Act gives the employee the right to demand an open meeting! Why you ask?

    To prevent abuse of secrecy tactics employed for carrot and stick, threat and reward tactics to make accountability for politicized firings go away. That is not a Howard Hills opinion, that is the law of the Brown Act that recognizes the temptation of elected leaders to play it safe on advice of counsel to avoid due process and equal protection of law that some employees want instead of backroom payoffs.

    But I digress. The truth is that most if not all Brown Act closed meeting exceptions, including the illustrative examples I gave – litigation and personnel – are stated in the permissive “may” instead of mandatory “shall.” There may be a few “shalls” triggered by fiduciary contingencies but the primary exceptions are permissive. So you don’t have to rely on my word for it, even though I would never knowingly mislead you the way we were knowingly misled, here is the law:

    Brown Act, CA Gov. Code Section 54957 (b)(1-4)

  4. Doug, Anthony, there is no distinction under Brown act for “legal” personnel matters, or personnel matters that involve litigation. Bit are permissive so that a decision is made that the public interest and the interest of education are served by secrecy.

    Here is the actual text of the most specific and relevant law allowing but not requiring closed meetings on personnel matters:

    Section 54957(b) (1) Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.

    (2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

    (3) The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.

    (4) For the purposes of this subdivision, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. This subdivision shall not limit local officials’ ability to hold closed session meetings pursuant to Sections 1461, 32106, and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code. Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.

  5. Don’t know how first two sentences of my comment got so garbled, must have been typing on phone or there was text anomaly. For the record not that anyone cares here is what was intended:

    Doug, you and I had the same impression, and for a long time I thought same as you. But that was because that’s what I was told by School Board members, who were misinformed deliberately by lawyers, but as Board members soon learned that it paid off politically to practice the same manipulative strategies for misrepresenting the Brown Act used by law firms that prey on School Boards and City Councils.

  6. Howard to a point you made. Kohn falsely accused me of a Brown Act violation which according to the act is impossible. Interesting that members of council were willing to also accuse minority members of violation in a different application misuse about a year earlier. Frankly, In my opinion the first error by Kohn made what he attempted to do to intimidate my rights led to his exit? Kohm put himself and council at risk again with the DA by inappropriately attempting to misuse the law in my opinion. IT IS ALSO MY OPINION THAT THIS CITY FAILS TO DISCLOSE SO MUCH INFORMATION THAT OTHER WELL RUN CITIES SHARE WITH RESIDENTS AND VOTERS EVERY DAY. How many of Bob Whalen’s private meetings as mayor with Council hid self incriminating evidence? We may never know. In my opinion that is just the way Whalen planned it. Do you trust that behavior?

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