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.

By John Hrabe

Taxpayers have billions of reasons to gripe about Proposition 30 and one reason to cheer.

Gov. Jerry Brown’s multi-billion dollar tax initiative contained a little-known and frequently misunderstood provision that effectively restored the state’s open meeting law for local governments and special districts.

Under the state’s landmark Brown Act, local and special district agencies are required to publicize an agenda at least 72 hours prior to any meeting and then deliberate in a public and transparent process. “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,” the law’s key provision states.

From questionable government contracts to employee pay raises to sweetheart development deals, there’s no end to what government agencies might hide. In 1953, it took Assemblyman Ralph Brown just 686 words and one page to codify why government shouldn’t be allowed to operate in secret. Yet, this unambiguous language hasn’t stopped government agencies from finding creative ways to thwart the law. Over the years, courts have repeatedly weakened good government attempts to enforce the law.

Reimbursement inflation: 33 minutes per agenda item

State law requires the California Legislature to reimburse local agencies for any state-imposed mandates.  One evasive maneuver, which has been commonly employed by local governments, is to inflate these reimbursement costs that are billed to the state.

A February 2011 LAO report exposed a few of the absurd price tags for drafting an agenda. In 2008-09, the Mesa Consolidated Water District demanded $12,852 to create the agendas for 74 board meetings. In a majority of cases, Mesa Consolidated officials took the standard meeting reimbursement rate. When the agency didn’t request a standard reimbursement, it claimed “33 minutes of staff time (at a $75.21 hourly rate) for each item on the other agendas.”

This high reimbursement cost caused the state to gut the Brown Act in this year’s budget. The Orange County Register’s Brian Joseph reported that the temporary suspension of the Brown Act saved the state $96 million in local government and special district reimbursement costs.

Not anymore. The reimbursement scam ended with Prop. 30.

“In the past, the state has reimbursed local governments for costs resulting from certain provisions of the Brown Act (such as the requirement to prepare and post agendas for public meetings),” explained the Legislative Analyst’s Office in its independent analysis of Proposition 30. “This measure specifies that the state would not be responsible for paying local agencies for the costs of following the open meeting procedures in the Brown Act.”

The state’s leading open government advocacy group has praised this substantial change.

“Proposition 30, Governor Brown’s revenue measure approved by the voters, contained a little-publicized provision that amended the state constitution to say that from now on, no existing or future Brown Act requirement will be eligible for new state reimbursement claims by local agencies,” explained Terry Francke, General Counsel of Californians Aware. “No more claims; no more cascading state debt to pay for routine activities like posting meeting agendas; no more time-outs from the open meeting law.”

Secret government: What they’re hiding

Following the state’s Brown Act suspension, numerous government agencies throughout the state announced their intentions to voluntarily comply with the Brown Act. The California League of Cities, the taxpayer-funded association of city officials, adopted a resolution “to voluntarily comply with the spirit of the Brown Act.”

Francke warns that voluntarily compliance is insufficient.

“The problem is that when these agencies want to slide something by public attention using a misleading agenda listing, or adding a controversial item for action that was never mentioned on the agenda, the mandate suspension means that nothing can be done about it using the courts,” he explained to CalWatchdog.com earlier this year. “That cripples the enforcement of open government and accountability via disclosure.”

That’s what happened in San Diego earlier this summer. County supervisors replaced  “Chief Administrative Officer Walt Ekard within four hours of his announced resignation — even though the matter was not noticed 72 hours in advance,” according to the U-T San Diego. In response to an open government group’s request for an explanation, the county chief deputy counsel dismissively wrote that there is “no legal basis for threatening or bringing a lawsuit for failure to comply with (Government Code) section 54954.2 because that section is no longer operative.”

In an email to open-government supporters, Francke added that state legislation is now needed to restore other provisions that were temporarily suspended by the Legislature. State Sen. Leland Yee, D-San Francisco, who has authored several open government bills, is expected to introduce legislation next year.

“Every government body owes it to its constituency to make its agendas — which must be prepared for its elected officials anyway — available to the public in advance and to report its actions,” the Los Angeles Daily News recently editorialized. “Fulfilling those obligations is a cost of doing business for each city, county, school district and special district, and should not depend on reimbursement from the state or anyone else — other than the taxpayers who pay for it already.”

Where Governor Jerry Brown is concerned, anything goes. It’s a mistake to call him a mere liberal — while I have no doubt that he adheres to some vague progressive impulses, he is fully capable of proposing policies that defy ideology.

A recent example of this is his proposal to cut part of the budget by “suspending” some Open Meeting Act Reform mandates for one year. These mandates allow cities and local governments to seek reimbursement from the state for carrying out various provisions of the Open Meeting Act like preparing meeting agendas, posting the agendas in “accessible locations” 72 hours before meetings, disclosing items to be discussed in closed sessions and training legislative officials in carrying out closed sessions as provided by the Open Meeting law.

The Open Meeting law, which dates to 1953, is one of the pillars of modern democracy in California. It forces elected bodies to meet in public and act only on business that has been placed on agendas well in advance of meetings, so members of the public have time to prepare and, if necessary, comment. In 2004, voters also passed Proposition 59, which also mandates public access to local government meetings, though the Legislature has never passed a law actually implementing the measure.

Now according to the state Legislative Analyst’s Office (LAO), suspending the reimbursements for things like posting agendas will save — drum roll, please — about $63 million in 2011-12. Now while such savings are a pittance when compared to the state’s $20 billion budget deficit, there’s considerable evidence that localities have been over-billing the state, sometimes lavishly so.

“Some entities billed the state as much as $75 a hour to compile the agendas,” the Associated Press reported in this Feb. 26 story on recent audits of the Open Meeting Act mandate reimbursements. “The [state] controller’s office decided that several of the claims far exceeded what it deemed reasonable.” In the case of Contra Costa County, for instance, the AP discovered that the controller’s office had rejected $795,000 of $1.1 million in claims from July 2002 to June 2004. It also rejected $1.8 million of $1.9 million in claims from July 1999 to June 2001.

That being said, Brown’s proposal is a rotten, risky idea that would do far more harm than good.

“The governor’s plan to suspend the mandates for one year is a bad idea because it will create year-to-year uncertainty as to what is required of local agencies,” said Lawrence McQuillan, a scholar and colleague of mine at Pacific Research Institute who is currently finishing work on a study of California’s open records and meetings laws. “Californians deserve certainty and transparency.”

The LAO agrees with McQuillan, calling the governor’s proposal in a Feb. 24 report “confusing to the public” and says it sends the “wrong signals to local government.”

“Using the one-year budget act suspension process to change statutory requirements regarding public access to local government decision making reduces transparency in government,” reported the LAO. “Suspending the provisions regarding agenda posting and closed session disclosure could be interpreted as the Legislature making these provisions optional.”

But the LAO’s remedy is even worse. The Legislative Analyst recommends that each local government simply be left to “announce its policies” for carrying out the law. This, the LAO finds, would also save $63 million a year while steering clear of the “year-to-year uncertainty” that comes with Brown’s idea. To McQuillan, this is asking for trouble.

“The LAO’s recommendation to recast the mandates as ‘best practices’ and have local governments develop their own implementing ordinances that will ultimately fulfill Proposition 59 is unproven, speculative and fraught with problems,” McQuillan said. “This approach will be a litigator’s dream because each local implementing rule could be subject to court challenge as to whether it moves toward fulfilling Prop 59 or moves away from it. Also, this process will be very slow, costly in terms of rulemaking and litigation, and result in a lack of uniformity across jurisdictions, at least until the state Supreme Court finally decides each issue.”

Indeed, the LAO seems to recognize as much, finding in its report that under its own recommendation “some local agencies could enact alternative policies.” Though Prop 59 prevents these new policies from limiting public access to meetings, “even modest procedural changes in public access policies, however, could cause some short-term confusion, making it more difficult for Californians to oversee actions of their local agencies.”

So what’s the solution? How about leaving things exactly as they are. That means continuing to spend $63 million a year reimbursing local governments for things like posting agendas. When you’re dealing with a deficit in excess of $25 billion, such a tiny sum is all but irrelevant.

Of course, our state officials, and Jerry Brown in particular, are utterly incapable of leaving anything alone, so don’t expect so revolutionary an idea to gain any traction.

-Anthony Pignataro