The Bigger Picture with Marty Cheek: Understanding the Ralph M. Brown Act is vital for all public officials

Published in the April 1-14, 2015 issue of Morgan Hill Life

By Marty Cheek

Marty Cheek

Confession time.

Recently, I became chair of Morgan Hill’s Parks and Recreation Commission. My very first meeting serving as chair, held March 17 at the City Council Chamber, got off to an embarrassingly rocky start.

Within a few minutes of the start of the meeting, the commissioners listened to public comments from a Morgan Hill resident. Two of the commissioners started getting engaged in a conversation with the gentleman. Because the item wasn’t on the agenda, that was a big no-no according to the Brown Act, the law that regulates public meetings in various government bodies and agencies in California.

Luckily, Chris Ghione, Morgan Hill’s community services director, broke in and warned us we needed to be careful not to go into discussion on the matter. He suggested we could put it on the agenda for a future meeting so that all parties involved might have public notice to attend and participate.

Morgan Hill Unified School District board of trustees last month have also had to face the complexities and potential liability minefield of the Brown Act.
Newly sworn-in Trustee Gino Borgioli intends to develop a series of monthly forums so that trustees and staff can have an open dialogue with constituents to discuss concerns in the district.

The first Engage MH meeting was held Feb. 25 at El Toro Elementary School with about 60 residents showing up. Also attending the informal meeting were district personnel, school staff, and five of the seven school board members — and that might have led to a violation of the Brown Act.

While the intention of community outreach and receiving public input is an admirable one, the Engage MH format might need to be restructured because it could potentially open the door to liability for members of the school board as well as district administrators.

One concern is that parents might make complaints about a specific principal or teacher to school board members at these meetings instead of following a proper personnel procedure. Borgioli later said he would not hold the forums on school campuses or with district personnel, a wise move.

So what is the Brown Act and why is it important that elected public officials and appointed commissioners take careful heed of this state law?

The history of the act started one evening in late 1951 at the San Francisco Chronicle office where a young news reporter named Michael Harris was manning the night desk. By sheer coincidence, he received phone calls from three unconnected citizens complaining to him that officials had kicked them out of three different public meetings. The calls planted a seed in Harris’s mind for a series of articles investigating public access to local government meetings.

After the city editor approved the proposal, Harris began visiting cities and counties throughout the Bay Area. He was barred on several occasions from various government meetings. In Oakland, the city council members made him leave a meeting that they didn’t want to receive any press coverage. Other governments meetings were held in basements and were never announced to the public.

Harris’s 10-part series was called “Your Secret Government.” It cast a light on how the public often did not have access to witnessing what the members of city councils, school boards and commissions were doing in deciding on the laws and policies that impacted their lives.

After the publication of Harris’s articles in 1952, the League of California Cities and the California Newspaper Publishers Association went to Assemblyman Ralph M. Brown of Modesto and asked him to be involved in the authoring of an open-meeting law that would require government bodies to conduct their business in public. The bill would be a landmark law.

A graduate of Stanford University’s Law School, Brown worked as a lawyer in Modesto and on behalf of his clients attending government meetings where public officials would often agree on an item, then, after Brown left the meeting, the officials voted a second time with a different outcome. Brown introduced his bill in January 1953. Nine months later, it became law. That original law was a 686-word statute with the preamble written by Harris in honor of the reporter’s ground-breaking series of stories. Today, the Brown Act has grown into a 45-page document.

Within six years of its passage, 19 other states adopted similar acts of their own. Now all 50 states have legislation providing public access to government meetings.

Digital technology such as computers and smart phones have had an impact on the Brown Act. For example, public officials need to be careful when sending out emails to other officials that they don’t commit a violation. And during a public meeting if an official might be using a smart phone to text information to all or a majority of the council, that communication must be “made available upon request without delay” to a news reporter or a member of the public who demands to see it.

For representational democracy to work in America, governments are bound by “sunshine laws” such as the Brown Act to open their meetings (except for closed-door exceptions like personnel issues and negotiations) to public scrutiny and citizen input on discussions

Information such as meeting times and locations, the minutes of previous meetings, agendas and other pertinent information must be easily provided for the public to keep a watchful eye.