Some curious letters appeared in the local Vietnamese-language newspapers late last month during the heat of the battle between Orange County Supervisor Janet Nguyen and the Vietnamese American Community of Southern California over who would receive permits to use a park in Westminster for Black April ceremonies.
The letters, for all intents and purposes, announced that Westminster Council members Tri Ta, Andy Quach and Tyler Diep had made a decision regarding the controversial permit issue. The only problem was that they had come to that decision privately, before a scheduled council hearing on the issue.
Wait a minute, said the The Liberal OC.com’s Chris Prevatt, that seems like a Brown Act violation of the first order. Sure seemed like it to Voice of OC as well. But just to be sure, we asked Terry Francke, our open government consultant, for an analysis.
Here is the question we posed to Francke, who is also co-founder and general council for Californians Aware:
What does the Brown Act say regarding discussions (both verbally and through email) among city council members on action items on a meeting agenda before the meeting takes place?
Here is Francke’s answer:
This question is prompted by the current controversy surrounding letters sent to local Vietnamese-language newspapers by a Westminster city councilman announcing a decision reached on a controversial permit matter by a three-member majority of the council, based on their discussion outside any announced and open meeting.
Full disclosure: Richard McKee, the Vice President for Open Government Compliance of Californians Aware, of which I am co-founder and general counsel, has sent the Westminster council a letter alleging that this meeting violated the Ralph M. Brown Act, and demanding that the council reverse its resulting decision on the permit issue accordingly.
Here is why Mr. McKee and I agree that the meeting, however conducted, violated the law. The Brown Act’s most fundamental rule, in Government Code Section 54953 (a), states: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.” In Government Code Section 54952.2, it states:
(a) As used in this chapter, “meeting” means 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.
(b) (1) A majority of the members of a legislative body shall not, outside 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 jurisdiction of the legislative body.
In other words, any offstage discussion involving a majority of a Brown Act body in order to reach an official consensus — whether by traditional face time, go-betweens, phone, fax, e-mail, tweet or any other medium or mechanism — is simply prohibited.
Accordingly, when three members of the Westminster City Council released a press statement to at least two Vietnamese language newspapers announcing their consensus that a certain day of historic observance keenly felt in the community — commemorating the fall of Saigon in 1975 — needed to include all concerned ethnic organizations, not just those who had obtained a permit months earlier to conduct a ceremony at the city war memorial, and when whatever discussion the three had on the matter had not been at a public meeting, people noticed.
The existing permit was in effect challenged by a permit application seeking the same date and time at the memorial — an application then on the posted agenda for the next council meeting.
Then when these council members, at that official meeting, shifted the time at the memorial assigned to the original group to a less preferable hour, and awarded the permit for that preferred time to the new applicants, people were entitled to conclude that this shift had been decided in advance by the majority behind the scenes.
Ironically, the press release announcing the consensus stressed the day of observance’s need for “inclusiveness”, “harmony”, “working together”, “unity”, and the city’s need to avoid “taking sides” in the memorial access question. But then the council majority did take sides, as evidently agreed upon without consulting both sides, and as obviously agreed upon without opening the discussion to the community itself, as the Brown Act requires.
There is nothing about this kind of self-publicizing secrecy that is peculiar to Westminster. Regularly if not frequently letters to the editor or to other government agencies surface that could only have been composed based on discussions among a majority of a body that did not occur in public.
Mr. McKee on his own behalf is suing the San Francisco Bay Area Rapid Transit (BART) District, seeking a court declaration that a letter signed by a majority of the board of directors, addressed to a federal agency on a funding issue, was unlawfully deliberated in some kind of unannounced process in violation of the Brown Act.
The strictness of these rules is hardly a technicality. If governing majorities on city councils, school boards and boards of supervisors, for example, could use unannounced huddles to compose and sign off on background letters or position statements on matters before the California Legislature or the Congress, who could keep the messages honest or their authors accountable for them?
— TERRY FRANCKE