Arguably one of the state’s most sacred laws governing public access, the Ralph M. Brown Act turns 60 this year. Named after and authored by former state Assemblyman Ralph Brown, guarantees the public the right to attend and take part in open public legislative meetings.
The law is viewed by many public interest groups as virtually untouchable, but a Culver City councilman has been mulling over a change to the open meetings statute that he thinks will make for improved communication within a governing body and maintain the law’s transparency.
Councilman Jim Clarke is considering lobbying for the implementation of something that is current prohibited under the Brown Act, although he admits that it must be fleshed out more.
“I’m proposing that we be able to conduct what’s called a ‘serial meeting,’ where I could meet with another person and then meet with another person and so on,” he explained. “By the very nature of it, I could talk to all the members of the council and right now you’re not allowed to do that.”
Clarke said he would not be looking to make decisions, only seek information.
The term “serial communication” is described as a communication that results in a meeting of the members, although the members are not present at a publicly posted and Brown Act meeting, according to Los Angeles City Attorney Carmen Trutanich’s office.
Clarke, who serves on the League of California Cities Administrative Services Policy Committee, which has studied revising the Brown Act, said he in no way is seeking to undermine the spirit of the law.
“I’m for all kinds of transparency, and I don’t like decisions made in secret,” he said. “But on the other hand, I would like to know going into a council meeting where my colleagues are coming from on a particular issue.
“Right now, I can talk to only one other member about a particular issue. But the staff can talk to all members of the city council and meet together for hours and figure out what they want to do and they can lobby each member individually,” the councilman continued. “And then I go into a council meeting and I haven’t had a chance to talk to one of my colleagues who may have a good idea on an issue.”
Because he and others are bound by the Brown Act, Clarke said he and others are sometimes forced to make quick decisions on a matter without being able to confer with a colleague who has brought forth an idea that he thinks deserves more discussion.
Examples of prohibited serial meetings include emails among a majority of the board or committee, members discussing or arguing a member’s point of view and a meeting of the majority of the members of a committee or legislative body seeking clarification or discussing a topic that will come before the body.
“If I was allowed to have (serial meetings) the item would have to be put on the agenda at the next council meeting, I would have to inform the public that I did have conversations (with other members) and I would have to provide a reason on why I voted the way that I did,” Clarke explained. “Right now, I don’t have to do that.”
On Aug. 9, 2009 then- Gov. Arnold Schwarzenegger signed a bill that strengthened the current provision of the Brown Act that outlaws serial meetings.
Assemblyman Michael Eng (D- Monterey Park) authored 1494, amending the Bagley- Keene Act, a 1967 law that addresses government accountability and transparency.
“A majority of the members of a state body shall not, outside of a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter of the state body,” states the amendment, which became law Jan. 1, 2010.
There have been a number of legislative proposals in recent years, depending on one’s viewpoint, seeking to strengthen or weaken the statute.
The League of California Cities backs Assembly Bill 792, which would specify that local agencies may conduct public meetings even if they are unable to post the agenda on its local website because of software, hardware or network services impairment “beyond the local agency’s reasonable control.”
The meeting would be allowed, under Assemblyman Kevin Mullin’s (D- Belmont) bill, as long as the legislative body met specific requirements, including an immediate posting of the meeting notice or agenda “upon the resolution of the technological problems.”
“AB 792 offers much needed guidance for public agencies that maintain a website, which are required under current law to post public meeting agendas to their websites 72hours in advance of their meeting, in addition to following all other Brown Act open meeting laws,” wrote Natasha Karl, the league’s legislative counsel. “Unfortunately, the current law is silent on how a local board or council may proceed with conducting the business of their community when they are not able to post agendas to their website.”
Another bill by state Sen. Leland Yee (D- San Francisco) Senate Bill 751 would mandate each local legislative body to publicly report any action taken by a governing entity, as well as the vote or abstention of the action of all members.
And Assembly Bill 194 sponsored by Assemblywoman Nora Campos (D- San Jose), which did not make it to the legislative committee, would have made it a misdemeanor for a member who is chairing a legislative body to public criticism under the Brown Act.
Clarke said he received “a lot of head nodding” when he talks about the concept of serial meetings from other elected officials, but realizes that he would have to convince the state Legislature to essentially overturn AB 1494 in order to be able participate in these meetings.
“One of my biggest frustrations is that I can’t get quality information on a particular topic before a council meeting so that I can go into that meeting as well-informed as possible,” he reiterated. “This way, I’m being asked to make decision with one hand behind my back.”
The California Newspaper Publishers Association opposes serial meetings and was one of the biggest supporters of AB 1494.
Assemblywoman Holly Mitchell (D- Culver City) did not return inquires for comment on Clarke’s proposal.
Pull quote: “I’m for all kinds of transparency, and I don’t like decisions made in secret. But on the other hand, I would like to know going into a council meeting where my colleagues are coming from on a particular issue.”
Councilman Jim Clarke