REFLECTIONS ON THE "(Ralph M.) BROWN ACT"
Sunday, December 13, 1998 LA TIMES (Section B "METRO)
any local government
officials routinely break the California law
that requires them to conduct the public's business in public, a
veteran
city attorney has asserted in remarks that support suspicions
long held
by outsiders that the law often is not followed.
James L. Markman, who has represented small cities in
Southern
California for more than 20 years, suggested to a League of
California
Cities gathering of about 200 mayors, city council members and
city
managers this year that many local lawmakers do not take the open
meetings act seriously and that it would be naive to think that
they
generally obey it.
"Does anyone here really believe that the only time
council members
discuss issues of interest in the city is at open council
meetings and
[lawful] executive sessions?" asked Markman, who represents half
a dozen
cities in Los Angeles, Orange and San Bernardino counties--two
more
cities, he said, than any other lawyer in the state.
"Does anyone here think two councilmen or three haven't
committed to
go a certain way on an issue other than at a council meeting?
"I've got a lot of friends in this room--dear friends,
[city]
managers, council members I represent," Markman continued before
posing a
question. "Is it unethical to know you're constantly violating
the [open
meetings law, known as the Ralph M.] Brown Act? That's a candid
and fair
question."
The frank nature of Markman's talk, which drew repeated
and knowing
laughter from the local officials in the audience, has created a
stir
among journalists and others who monitor public affairs as a rare
acknowledgment by an insider that many officials hold the
45-year-old
open meetings act in disrepute.
A spokesman for the California First Amendment
Coalition, which has
been circulating a transcript of the tape-recorded remarks, said
audience
reactions on the tape provide disappointing evidence of the low
regard
for an act that begins with a declaration of high-minded purpose:
"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 act begins. "The people insist
on
remaining informed so that they may retain control over the
instruments
they have created."
At the League of California Cities meeting, when Markman
asked, "Does
anyone here give a real damn about the Brown Act?" the transcript
shows
the audience responding with laughter.
Then one participant pipes up, to more laughter, "Can we
turn the tape
off now?"
Reaction to Acknowledgment
Terry Francke, general counsel to the California First
Amendment
Coalition, a nonprofit advocacy group funded primarily by the
newspaper
industry, said he was not surprised to learn that local
government bodies
often meet illegally in private. But he said he was "astonished
at the
kind of bald consensus that appeared to emerge [at the gathering]
about
marginalizing and ridiculing the law."
Markman said in an interview that he too saw the
reaction as evidence
that the law is widely viewed with disdain by those who are
supposed to
be governed by it and that he believes, therefore, that it should
be
rewritten.
A partner in the law firm of Richards Watson &
Gershon, which
represents 30 cities, he told the gathering in Monterey that in
his
experience it is the rarest public official who adheres to the
law, which
requires that the public be given advance notice of the matters
that are
to be discussed and that all but a specified few--involving such
things
as real estate transactions, litigation and personnel--take place
in
public.
Markman said that a common violation of the Brown Act
involves
discussing other matters in sessions from which the public is
barred.
"There are lots of city managers and council members who are real
comfortable when the [public] meeting is over and you're in
executive
session, having a free-wheeling discussion about city issues that
are
going on because that is the only time [part-time, small city
officials]
can sit down together," he said.
Markman related, as an oddity, how he encountered a
stickler for the
law years ago when he served on a school board. He did not say
which
school board, but his resume says that he was president of the
East
Whittier School District Board of Education in 1977-78. The
school board
member, he said, would not discuss an issue with other members
except at
meetings. "She said, 'I will bring my thoughts to the meeting.
You bring
yours to the meeting and we'll see what happens.' I submit, I
don't think
that happens 99% of the time," the lawyer said.
Markman said that his current clients--the cities of
Brea, La Mirada,
Buena Park, Rancho Cucamonga, Hesperia and Upland, according to
his
resume--have a variety of approaches to the law.
"Every one of these cities has a different attitude
and different
desires about how much compliance you give the Brown Act," he
said. "In
some cities I am asked to be very scrupulous about advising on
the Brown
Act, and in other cities I am more often asked to devise ways to
get into
[closed door] executive session, if I possibly can."
Markman said that he once found out that he was hired as
a city
attorney because, in the job interview, "I told them I could be
very
clever about circumlocuting the Brown Act."
Markman did not tell the gathering the name of that
city, nor which of
the cities he represents subscribe to which philosophies of
adherence.
And in an interview, he also declined to provide names. But he
emphasized
that his role is to urge compliance with the law.
Markman also represents the redevelopment agencies of
Stanton, Upland,
La Mirada, Buena Park and Rancho Cucamonga, as well as the
Hesperia Water
District, according to his resume.
At the League of Cities meeting, he spoke on the topic
"Ethics in City
Hall" and attempted, he said, to draw out his listeners'
attitudes about
whether they thought it was unethical to violate the open
meetings law.
"The 200 or so public officials in that section laughed and
scoffed at
some of these Brown Act prohibitions and thought they should not
be
observed," Markman recalled in the interview.
He said that only two people commented that the law
should be obeyed.
"When you have a law that's held in disdain, maybe the
law should be
changed," he said.
Support, Criticism of the Law
Angela Glasgow, a spokeswoman for the League of
California Cities,
said her organization drafted the legislation that became the
Brown Act
in 1953 and remains in staunch support of it. She said she was
pleased to
hear one city official on the tape say that the best way to
follow the
Brown Act is to follow it to the letter.
Markman described two provisions of the law as most
troublesome. He
said that the prohibition of closed-door meetings on topics other
than
litigation, real estate and personnel frustrates city officials
and city
attorneys who feel they have a legitimate need to privately
discuss other
kinds of contracts under negotiation. "The practical outcome is
that the
elected city council as a whole cannot talk to their lawyer on
business
matters," Markman said in the interview. "It makes city staff
more
powerful because they can talk to me in private, and I think that
is a
very poor way for the public's business to be conducted."
Markman is also troubled by a Brown Act provision that,
as he
interprets it, bars a series of individual city council members
from
meeting privately with parties interested in a matter before the
city
council if the meetings lead to a majority of council members
forming a
consensus outside of a public meeting.
"Who's going to admit that?" he said to laughter.
Violating the Brown Act is a misdemeanor of which no one
ever has been
convicted, Francke said.
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