Friday, October 2, 2009
D.A.: Brown Act Efforts Seek Compliance, Not Punishment
By KENNETH OFGANG, Staff Writer
The District Attorney’s Office aggressively enforces the state’s open meetings law for local public agencies with an aim of gaining compliance, not to punish anyone or entangle itself in local politics, District Attorney Steve Cooley and two top deputies said yesterday.
“We are not trying to squeeze [people] into an overcrowded county jail system for a violation of the [Ralph M.] Brown Act,” Cooley told an audience of elected officials, attorneys, and government staff members. The occasion was a “Brown Act Enforcement Educational Forum” at the Metropolitan Water District’s downtown boardroom.
Cooley was the leadoff speaker among the panelists at the eventm which was sponsored by the County Prosecutors Association in conjunction with the District Attorney’s Criminal Justice Institute.
‘No Institutional Memory’
Cooley said that when he became district attorney, there was no set of procedures and “no institutional memory” as to how to handle Brown Act violations. “We had a clean slate” to write on, he explained, when the office handled its first Brown Act case of his tenure, which began with a complaint over a closed meeting held by the Los Angeles Unified School District board to discuss plans for the Belmont Learning Complex.
The board initially claimed it had relied properly on the act’s litigation exception, but eventually rescinded the action taken in closed session and held a public meeting on the issue.
Cooley said local government attorneys have told him “Thank you for being the bogeyman” who frightens officials into taking their own lawyers’ advice on what they need to do to comply with the act.
David Dermerjian, who head the district attorney’s Public Integrity Division, explained that the office receives about 40 Brown Act complaints per year. About half are closed after 30 days, usually because there is clearly no violation, while one-fourth are closed after a more extensive investigation and the rest result in a “cure and correct,” or “knock it off,” letter, Dermerjian explained.
Only Civil Suits
Those letters are almost always sufficient to redress any violation, he said. The office has brought only two civil suits, which were settled, in the last eight years, he explained, and has never brought a criminal prosecution for violation of the Brown Act.
Dermerjian said that to the best of his knowledge, there has never been a criminal prosecution anywhere in the state in the nearly 60 years since the law was enacted.
The prosecutor detailed a series of “myths” that some local officials have about Brown Act enforcement, including that “we are unaware we are being used for political purposes.” His office is fully aware that people complain about supposed open-meetings violations because they have agendas, he said, but “we just don’t care.”
Other such myths, he said, are that the office isn’t interested in local officials’ side of the story; that it seeks to embarrass their agencies, in part by instigating publicity; that it doesn’t understand the difficulties of running a government agency; and that “we don’t know what it’s like to deal with the public gadfly.”
In fact, Dermerjian said, his division is always willing to consider local officials’ responses to complaints, as long as they are in writing so that they can be made accessible to the public. Prosecutors will not meet privately with officials, however, because there is “something unseemly” about having a secret meeting to discuss an allegation that the person you are meeting with participated in an illegal secret meeting, he said.
Deputy District Attorney Jennifer Lentz Snyder, who is Dermerjian’s assistant head deputy and the office’s designated expert on the Brown Act, who explained that because the focus is on compliance and not punishment, the office does not consider an official’s intent or state of mind, but only whether someone’s conduct has violated the statute.
She cautioned, however, that many complainants do not understand the limited scope of the act, and think that it can be used to enforce procedural rules and redress general “due process” concerns about how local bodies do business. As for the officials present, she urged them to embrace the act, rather than treat it as an obstacle, and reminded them that even when the law allows a closed meeting, it does not require one.
“We are trying to restore public confidence in all the hard work that all of you do,” she explained.
Besides the prosecutors, the panel included Terry Francke, general counsel for the open-government organization Californians Aware, and city attorneys Marsha Jones Moutrie of Santa Monica and Michele Bagneris of Pasadena.
The three ran through a series of scenarios, some hypothetical and some actual, raising questions about the application of the act. Many involved the use of new technologies, such as email and text messaging, that can be used to communication information among officials during and between meetings.
The panelists cautioned that officials must be mindful of the ban on “serial meetings,” in which officials hold separate meetings on the same subject, with the result being that a majority of the members of the body have engaged in a non-public discussion that violates the act.
Bagneris, however, noted that the act was amended last year to allow staff members to communicate with members of the legislative body separately on a given subject, as long as no member’s views are communicated to another outside of a Brown Act-compliant meeting.
The panelists also reminded officials that while the Internet has greatly increased public access by allowing users to view agendas, not everyone has computer access and they are still required to make their meeting agendas available in hard copy form.
Copyright 2009, Metropolitan News Company