Bill would strengthen public's right to comment before votes

“The people of this State do not yield their sovereignty to the agencies which serve them,” says California Code Section 54950 of The Ralph M. Brown Act, the state's bedrock open-government law.

But that’s not always the way the system works. Whether it's deliberate or not, interested members of the public aren’t always heard prior to a legislative body’s vote on an item.

A bill to remedy this by changing the open meetings act was passed 6-0 by the Assembly Local Government Committee on Wednesday and is headed to the Assembly floor for a vote. The measure would expand the grounds under which a district attorney or any interested party could seek to have a government action declared null and void because of a failure to provide adequate public testimony or other input. It also provides for tougher penalties against public officials who block public participation.

According to Assemblywoman Nora Campos, D-San Jose, Assembly Bill 194 would not remove any of the powers of those overseeing a board meeting. It “would give the people a chance to be heard in a public setting,” Campos said.

Campos said she served on her City Council for 10 years, which “did not always allow individuals the right to be heard.” She said the problem is there isn’t a mechanism for individuals to voice concern on public items they were not heard on.

The Brown Act was passed by the Legislature in 1953 to guarantee the public’s right to attend and participate in meetings of local legislative bodies. However, while the Brown Act makes allowance for remedies of alleged violations of its provisions, this involves litigation. Oftentimes, the issue has been decided by the time the legal challenge is heard, and the moment to act is gone.

“Too often local agencies have inappropriately curtailed this right and silenced individuals' voices,” Campos said at the hearing. “Part of the reason for these actions is that the penalties or remedies for violating this critical right are insufficient. If an individual files a complaint over being shut out, the local agency can simply promise they won’t do it again. The problem is that the action of the agency had already been taken, usually several months before.”

AB194 is supported by ACLU California, Californians Aware and the Californian Newspaper Publishers Association.

Bureaucrats speak up for status quo

John McKibben with the California Association of Clerks and Elections Officials opposes AB194. “The Brown Act provides adequate remedies,” said McKibben, warning that Campos' bill could inject subjectivity into the process and lead to openness laws being gamed. “It’s not always clear when a council limits public comment.”

Representatives from the California Special Districts Association and the city of Sacramento also expressed concerns, including the possibility that AB194 could create ambiguities with any contracts approved by government bodies at meetings being challenged under the bill's provisions.

The official bill analysis points to this concern, saying the bill would allow “any action taken under such circumstances to be voided by a court.”

“I am hoping by the time it gets to the floor, this is addressed,” said Assemblyman Katcho Achadjian, R-San Luis Obispo. Achadjian, the chair of the Local Government Committee, said he was concerned that if the bill were enacted as now written, an entire meeting's actions could be invalidated with one complaint.

Committee members call for fine-tuning

Members of the committee offered suggestions to improve the bill and praise for Campos' intent.

Assemblyman Rich Gordon, D-Menlo Park, said the bill language needs to be clearer to take out the subjectivity.

Assemblyman Kevin Mullin, D-San Mateo, warned of a “real-world effect on the court system” if the bill's language wasn’t tightened up.

“There is a void in the existing law,” Assemblyman Luis Alejo, D-Watsonville, said. Alejo said some government boards have public comment at the beginning of meetings, meaning testimony comes before board members discuss and deliberate on the issue. “Public comment should be taken up with that item.”

“I agree with what you are trying to do,” Assemblywoman Melissa Melendez, R-Lake Elsinore, told Campos.  She said she served on a City Council where members of the public sometimes didn’t have a chance to speak. But she agreed that the bill should be clarified.

Campos assured committee members she would tighten up the bill’s language to specify only the approved agenda item that members of the public wanted to speak on would be voided, rather than the entire meeting, if a complaint about a failure to provide public input were upheld.

A date for the Assembly to take up the bill has not yet been set.