The issue, brought up by Supervisor Bill Campbell at the supervisors’ last meeting, was this: If a majority of the supervisors on the dais read the same email during a public meeting and do not share that email with the public, are they in violation of the Brown Act?
I had occasion late last week to pose the question to Californians Aware general counsel Terry Francke. He said Campbell’s specific query is interesting, but that the key question regarding officials getting emails and texts during meetings is this: Are they being influenced by a few in real time without the public’s knowledge.
Francke seized on an example Campbell brought up during the discussion, an email from the Lincoln Club sent during the meeting regarding an issue the supervisors were set to vote on. This is exactly what Francke says is contrary to the spirit of the law.
“There’s no way for the public to tell who’s on the other end of that lifeline. Conceivably it could be a lobbyist who is undercutting the comments of a citizen as soon as they’re made,” Francke said.
Handling of electronic communications has become a thorny issue for Orange County’s local government agencies.
As I reported in a recent story, city governments around the county are routinely destroying emails in as little as 30 days. These actions, Francke and other open government advocates say, violate California’s laws on the retention and disclosure of government records.
As for emails and texts during meetings, Francke says the best solution would simply be to require that elected officials check their BlackBerrys at the door when they preside over a public meeting.
Francke also took issue with a county staff report’s finding of an exemption to the state’s open records act. The report says that “communications between a member of the Board of Supervisors and his or her staff members regarding items under consideration by the board member, or items actually on an upcoming agenda, are usually subject to the deliberative process privilege.”
The finding is misplaced, Francke said, because almost all cases involving the deliberative process privilege involved the state governor and not a local legislative body, such as the Board of Supervisors, which is supposed to conduct its deliberative process in public.
“The Brown Act is a long-standing reminder or expression of the fact that under California law, local deliberative bodies are to gather the facts, state the issues and reach their decisions in public. That does include the fact-gathering process,” Francke said.
He added: “If a member of the Board of Supervisors wants to consult with staff on an issue during an open meeting, then he or she can bloody well call them up out in the audience and question them where everybody can hear the answer.”