Wednesday, June 26, 2002
Janavs Won’t Enjoin Alleged Brown Act Violations by County Board
By KENNETH OFGANG, Staff Writer
Los Angeles Superior Court Judge Dzintra Janavs declined yesterday to enjoin Los Angeles County supervisors from engaging in what the Los Angeles Times’ publisher alleged were violations of the state’s open meetings law.
While rejecting most of the Times’ legal claims and the newspaper’s requests for mandate and injunctive relief, the judge declared that the board violated the law on three occasions when it discussed matters in closed session that were not on the agenda.
But since the violations were not part of a “nefarious” pattern or likely to be repeated, Janavs said, “it would be an abuse of discretion” to grant the injunction sought by the Times and co-plaintiff Richard McKee, president of the California First Amendment Coalition.
The judge said supervisors violated the act on Dec. 18 of last year and on Jan. 4 and Jan. 8 of this year. Her findings were those of District Attorney Steve Cooley, who concluded last month that no such violations occurred.
The Brown Act, which begins at Government Code Sec. 54950, requires all deliberations of local public government bodies in California to be conducted in public, unless they concern litigation or personnel matters. It prohibits members of city councils, boards of supervisors, commissions, water district boards, and other public agencies from contacting each other by letter or telephone, or in person in a non-public forum, to get information about matters they are to vote on or to discuss how to vote.
Janavs agreed with the Times that the board violated the law on Dec. 18, when it went into closed session ostensibly to discuss “[i]nitiation of litigation.”
The board violated the act “by discussing whether County Counsel Lloyd W. Pellman should withhold and by directing him to withhold” the title and summary which he was required to prepare for a proposed initiative, opposed by the board majority, which would increase compensation for the county’s home healthcare workers.
The board’s attorney, Thomas Winfield III of Brown, Winfield & Canzoneri, argued unsuccessfully that the board acted within the scope of the agenda item. Pellman, he said, had explained to the board that he could withhold the title and summary and thus force proponents of the initiative to file suit—permitting the board to raise constitutional objections to the measure.
The board approved by a vote of 4-1, although Pellman decided the next day that he had an independent statutory duty to prepare the title and summary regardless of that vote, Winfield explained.
Janavs also found that the board illegally deviated from its agenda during closed discussions on Jan. 4 and 8 by instructing Chief Administrative Officer David Janssen “to devise protocols for closed sessions and for taping meetings.”
But the judge rejected contentions that supervisors’ health deputies act as a “shadow board” by holding private meetings about matters before the board votes on them, and that the supervisors’ private, individual discussions with Janssen about items on the board’s agenda violate the act.
The plaintiffs, Janavs said, failed to prove that the deputies’ meetings were closed to the public. In any event, she noted, the board has adopted a policy that meetings attended by deputies for a majority of the supervisors be open.
The closed meetings between Janssen and individual supervisors, the jurist concluded, are legal. These meetings are not designed to circumvent the Brown Act by forming a backdoor consensus on actions to be ratified in public, she said, but to permit an effective flow of information that the supervisors need in order to make their decisions.
Alonzo Wickers IV of Davis Wright Tremaine, representing the Times, said the individual meetings fall within the “broad definition” of decision-making under the act, and that the law could easily be complied with by having the CAO prepare and make public written summaries of the matters involved.
Right to Know
But Janavs said such a requirement would “stop the government in its tracks.” The Brown Act, she said, requires a compromise between the public’s right to know and the government’s need for efficiency, and requiring written documentation of every matter on which the CAO and the supervisors communicate would be very inefficient.
Wickers said he would have to review the transcript of the three-and-a-half-hour hearing before advising his clients whether to appeal. But he said he was heartened that the judge agreed the act had been violated, especially respect with the Dec. 18 discussion, which Wickers called the “linchpin” of the case.
Co-plaintiff McKee said the ruling was “incredibly important” and said it was courageous of the judge to rule against the supervisors in the fact of Cooley’s conclusion they had done nothing wrong.
Winfield declined to speculate on how the supervisors would react, but pronounced himself “happy” with the decision. The violations found by the judge were “minor” and “technical,” he said.
Copyright 2002, Metropolitan News Company