After a preliminary finding in May that the Capistrano Unified School District violated the Brown Act, California’s open meeting law, the Orange County District Attorney’s office announced this week that they could not corroborate the finding.

But the office found a lot to fault, using colorful language to criticize the way the district conducted meetings. -db

From The Orange County Register, September 20, 2011, by Scott Martindale.

Full story

Saint Augustine’s college has banned a student from graduation ceremonies after the student posted comments on Facebook critical about how the college was handling its recovery from a tornado.

FIRE claims that in the absence of a policy sanctioning the punishment, the college improvised by declaring that a Facebook post challenging their decisions could keep a student from graduation ceremonies. The college said students had an obligation to protect the reputation of the college. -db

From a press release from FIRE, May 31, 2011.

Full release

The Bay Area Rapid Transit District, in response to charges of “secrecy and bureaucracy run amok,” has promised to reverse a years-long practice of holding closed meetings about the public’s business.

After a blistering editorial by the Contra Costa Times, the district’s board of directors acknowledged that as many as 20 committees have met privately about issues directly affecting riders and taxpayers.

In one case, the Times reported, a committee met in secret to discuss a $1 billion parcel tax for new transit cars. Another committee had held closed meetings about the budget for two decades, the Times said.

Read the full story here and an editorial here calling on BART to conduct its business according to the Brown open meetings act and to eliminate unnecessary committees.

In recognition of Sunshine Week, the Sacramento Bee’s Marjie Lundstrom has identified seven Californians who doggedly fight for open government.

Heroes or kooks, she says, they share a common quality: They don’t take no for an answer in their persistent efforts to pry open government for all to see.

Their drive for accountability has prompted new law and landed some of them in legal trouble. Never deterred, they keep pressing, in several cases fighting for local Sunshine ordinances to reduce the roadblocks.

Sunshine Week, a national initiative to promote openness in government, runs from March 13-19 this year. It is headed by the American Society of News Editors, with major funding from the John S. and James L. Knight Foundation.

The Bee’s story is here. Details on Sunshine Week are here.

The Salinas mayor wants to address thorny problems such as damaged sidewalks, graffiti and prostitution in a series of council study sessions with an emphasize on solving problems through staff recommendations and greater access to background information.

Council members will be responsible for two district meetings each year, and the mayor can opt to hold town meetings to discuss citywide issues.

From The Californian, February 8, 2011, by Kimer Solana-Ksolana.

Full Story

The executive director of the First Amendment Center says that too many new governors under oath to uphold the U.S. Constitution are hesitant about including the press in official events and granting public records requests in the process violating the First Amendment. -db

First Amendment Center
Commentary
January 23, 2011
By Gene Policinski

What’s in the gubernatorial water supply out there, when it comes to matters of the First Amendment?

Just 45 words setting out five essential freedoms as part of the Bill of Rights, the amendment has been around for — as of next Dec. 15 — 220 years. But several newly inaugurated state leaders have stumbled in word or fact over how to live up to that guarantee of our basic rights.

Alabama’s new Gov. Robert Bentley, minutes after being sworn in, told a church crowd on Jan. 17 that non-Christians were not his brothers and sisters — creating concerns that non-Christians wouldn’t receive equal treatment from state government. Two days later, he met with leaders of other faiths and then told reporters that “if anyone from other religions felt disenfranchised by the language, I want to say I am sorry. I am sorry if I offended anyone in any way.”

Journalists and others in Florida are complaining that new Gov. Rick Scott is excluding the public from traditionally open events, such as a post-inaugural party and formal dinners at the governor’s mansion. News reports also say he allows only select reporters to attend events, and responds slowly or not at all to public-records requests.

In an Associated Press story this week, Bob Rathgeber of The News-Press of Fort Myers, Fla., said former health-care executive Scott appeared to want to continue operating as if he were still in the private sector.

Earlier this month, new Rhode Island Gov. Lincoln Chafee banned state employees from appearing as guests on talk-radio shows. Calling such shows divisive, Chafee said they sought only profits and ratings, offered more entertainment than news, and were a diversion from state business. The governor and other state employees will still respond to individual reporters, he said, and even to talk-show hosts if they appear at his press conferences.

And right after the New Year, new Ohio Gov. John Kasich retreated from original plans to hold a family-and-friends-only inaugural party and swearing-in ceremony at his home after running into widespread criticism. Earlier, Kasich had told reporters that the events were closed to press and public because guests “don’t want you sticking a notebook and a pencil in their face” and chronicling what they eat and drink or whether they can dance well.

Whew, that’s a lot of closed doors — and perhaps closed minds – against the ideas and ideals that (1.) a free press represents the public (also known as voters, taxpayers and citizens), and (2.) that church-state separation means public officials and the government ought not publicly to endorse or criticize one faith over another, or give the impression that private faith will distort public policies.

Of course, public officials have a right to hold and express their own religious beliefs and to set reasonable policies on press and public access. But these new chief executives need to keep in mind that they now run public “companies,” not private ventures, and that they will be held to a new level of accountability, equal treatment, transparency and access by press and public.

None of that is anything new. Fifty years ago, then-presidential candidate John F. Kennedy had to assure voters that his Roman Catholic faith would neither restrain nor direct his decisions as president — and that if he could not resolve a conflict, he would resign. Government officials from George Washington on have had to deal with critical, questioning journalists and publications, and with citizens who want to be informed about public business.

The nice thing about being a new governor is that most of your term is still ahead of you. Why not take just a few seconds to re-read the First Amendment, and then make some policies and headlines in support of religious liberty, free expression and open government?

Copyright 2011 First Amendment Center     FAC Content Use Policy

The Sonoma County Board of Supervisors plan  to vote on a controversial asphalt plant to be built south of Petaluma without allowing the public to comment since they claim they have already allowed public comment on the proposal. -db

The Santa Rosa Press Democrat
December 14, 2010
By Brett Wilkison

Opponents of the proposed Dutra asphalt plant south of Petaluma plan to press their right to speak against the controversial project at the Sonoma County Board of Supervisors meeting Tuesday despite a county determination that the item would be closed to public comment.

Opponents say a state open-meeting law dictates that public comment be allowed on the matter. Supervisors are set to formally vote on the Dutra plant, a proposal they backed Oct. 12 in a 3-2 preliminary vote.

Because that vote was preceded by a full public hearing, including more than three hours of public testimony, county officials said today’s meeting can be limited to board deliberation on the project prior to the vote.

But opponents said that decision runs afoul of the Brown Act, which requires that government bodies such as the Board of Supervisors allow public comment on any item under their consideration.

“If they’re foolish enough to try and shut down public comment, let’s just say it doesn’t look good in front of a judge,” said David Keller of the Petaluma River Council.

County legal officials defended their decision Monday.

“Our position is there has been a full and fair public hearing and the board has taken a straw vote,” said David Hurst, chief deputy county counsel.

Hurst said the board and other government bodies regularly rely on the same legal interpretation to formalize preliminary decisions made in conjunction with previous public hearings.

“We take a different view” from opponents, he said.

California open-government expert Terry Francke said opponents are right to push their case for allowing public comment Tuesday.

Franke, general counsel of the non-profit Californians Aware, said state laws covering public hearings are not to be confused with the Brown Act, which protects public participation at government meetings.

“The public hearing may be closed but not the people’s right to address the board,” Franke said. Regardless of the hearing’s closure, he said, “the one thing the Board of Supervisors can’t do at this point is say ‘no public comment.’ You’ve got to allow people to speak.”

Hurst, the chief deputy county counsel, said board Chairwoman Valerie Brown could allow public comment on the item.

Brown and Supervisor Shirlee Zane voted against the asphalt plant in October. She could not be reached by phone Monday.

The Dutra asphalt plant is slated for 37 acres along the Petaluma River just beyond the Petaluma city boundary. In the works for five years now, it would have an annual production capacity of 570,425 tons of asphalt and rock material.

The item is one of several land use matters scheduled for a 2:10 p.m. time slot on Tuesday.

Copyright 2010 PressDemocrat.com     FAC Content Use Policy

Menlo Park’s new mayor resigned three days after he appointment, admitting that her private consultations with two other council members about the mayor vote constituted serial meetings in violation of the state’s open meeting law. -db

San Jose Mercury News
December 12, 2010
By Bonnie Eslinger

Three days after being appointed mayor of Menlo Park, Kelly Fergusson resigned from her post Friday in the fallout from apparently having violated the state’s open government law.

Fergusson also removed herself as a candidate for mayor when the city council votes again Tuesday night for a new leader.

“I recognize the city faces critical business during the coming year, and that my actions have created a distraction from essential focus of the council on this business,” Fergusson wrote in a statement released Friday morning.

“Having the best interest of the city at heart, I hereby resign as Mayor,” Fergusson said. “I will not stand as a candidate when a new Mayor is elected.”

A special council meeting had been scheduled for Friday afternoon so another vote could be taken to rectify the state law violation, but it was canceled. The city otherwise would have violated the same state law because it failed to state on the meeting notice hastily sent out Thursday that the public has a right to comment at the special session.

The resignation came one day after Fergusson admitted she discussed the mayoral vote with two council colleagues and had an intermediary talk to another before the Dec. 7 meeting. Those discussions apparently violated the state government law known as the Brown Act, City Attorney Bill McClure said.

Under the Brown Act, elected officials aren’t supposed to talk directly or through an intermediary with a majority of elected colleagues about city business scheduled for discussion by the full government body. By contacting two colleagues directly and one through an intermediary, Fergusson discussed the mayoral job with a quorum of the five-member city council before the scheduled vote.

On Friday, Fergusson reasserted that the violation was unintentional.

“I did not consider my individual contacts with council members or lobbying of members on my behalf to constitute a serial meeting, nor did I intend to violate any provision of the Brown Act,” Fergusson wrote in her latest statement. “However, in retrospect, and after discussing this in more detail with the City Attorney, I now realize that, in the aggregate, my conduct may well have constituted a serial meeting.”

Doing ‘the right thing’

Fergusson was appointed mayor on a 3-2 vote. Former mayor Rich Cline and newly-elected Council Member Kirsten Keith voted for Fergusson, who cast a the third vote for herself. During the same meeting, Keith was appointed vice mayor after being nominated by Fergusson.

Council Member Peter Ohtaki, who is also new, said he appreciated Fergusson resigning.

“That was the right thing for Kelly to do,” Ohtaki said. “I think it’s important to get past this and work on the key issues that the city faces.”

At the Dec. 7 meeting, Ohtaki had nominated Council Member Andy Cohen to be mayor. He declined Friday to discuss whether he would support Cohen again on Tuesday.

A non-binding city policy that the council has traditionally followed says the mayor’s position should be rotated among members who have served on the council for at least one year, with the turn for mayor going to the person who had served longest without the title. After Fergusson that would be Cohen, but his appointment is not certain.

Cline previously told The Daily News he would serve if nominated, and McClure said even a newly-elected council member could become mayor.

In her statement, Fergusson recommended that the “council’s policy of mayoral selection be suspended.”

Cohen, who has previously said he felt marginalized by other council members, pointed out that Fergusson had been all for the policy when her turn for mayor was coming up.
“I think Kelly’s trying to squeeze me out,” Cohen said.

Cline and Keith did not respond to calls for comment Friday.

A second violation?

The city’s decision to reschedule the meeting to Tuesday prevented an additional violation of the Brown Act, said Peter Carpenter, an Atherton resident who filed the original complaint against Fergusson in the form of a formal “cure or correct” request.

Carpenter sent the city an e-mail Thursday objecting to a mid-afternoon meeting with only one-day’s notice.
At 7:01 a.m. Friday, he sent another e-mail noting that the meeting notice did not explain the public would have an opportunity to comment — a Brown Act requirement.

McClure posted a challenge to Carpenter’s assertion on the city’s website, but followed up with another e-mail admitting Carpenter was correct. By 10:05 a.m. the city sent out a new notice, with the appropriate wording, and moved the meeting to Tuesday.

Carpenter said he was “stunned” to have to tell the city attorney how to comply with the state’s open government law.

“These people are waving the flag, saying we believe in the Brown Act,” he said. “Perhaps the first thing they should do is read it.”

Copyright 2010 San Jose Mercury News     FAC Content Use Policy

A divided Novato council elected a mayor bypassing a long standing tradition of elevating the pro tem mayor prompting her to challenge the election through accusations that the decision was made behind closed doors violating California’s Brown Act, the state’s open meeting law. -db

Marin Independent Journal
December 8, 2010
By Rob Rogers

Under ordinary circumstances, Novato’s annual election for mayor is as regular as the tides — and about as exciting.

On Tuesday, however, the Novato City Council elected Councilwoman Madeline Kellner as the city’s new mayor. In doing so, the council broke a long-standing tradition by making Councilwoman Carole Dillon-Knutson Novato’s first mayor pro tempore in 17 years not to succeed to the mayor’s office.

The move infuriated Dillon-Knutson, who accused her fellow council members of breaking the state public meetings law by making decisions in private, behind her back.

“Councilmember Kellner broke the Brown Act that guides our behavior as elected officials,” Dillon-Knutson said in a statement. “By going to two members to obtain their vote, she created a serial meeting.”

The Novato tradition of elevating the mayor pro tem “should have been honored,” said Councilwoman Pat Eklund, who nominated Dillon-Knutson for mayor and abstained from the vote that elected Kellner. “But that’s not what the other three council members felt. In the history of the city, there’s only been two or three times that rotation has not been honored.”

Both Councilwoman Denise Athas and former Mayor Jeanne MacLeamy said they meant no slight against Dillon-Knutson, who has served twice as mayor during her 15 years on the council. Instead, the two said they wanted to recognize the leadership shown by Kellner, who was elected to her first term in 2007. Kellner could not be reached for comment Wednesday.

“We are in unprecedented times, and I believe we need a really strong leader,” Athas said. “Madeline is a level-headed person who does her homework, is able to tackle hard issues head-on in and has proven herself capable of being available for all of her council obligations.”

Athas said she and MacLeamy only met with each other to discuss the issue, as allowed by law.

“We would have liked to discuss the issue with Carole, but under the Brown Act, we couldn’t,” Athas said. “It put us in the situation of blindsiding her (during Tuesday’s meeting), which was not our intent. This wasn’t a personal decision. It was a business decision for the town.”

Ernie Gray disagrees. Although it’s been decades since the former Novato councilman was passed over for mayor — and although Gray served as mayor on four other occasions during his five council terms — he still remembers the pain of that decision, and the dissension it caused within the council.

“As much as you can pretend that you’re going to be tough and forget about it and play along, it burns,” Gray said. “I was hoping this would never happen again.”

Former Councilwoman Gail Wilhelm, who was also passed over for the mayor’s seat during her time in office, said the decision felt particularly petty because Novato’s mayor has no real political power.

“The office of mayor is purely a ceremonial thing. You preside over meetings, but you don’t have any additional power over the other members,” Wilhelm said. “When these things happen, it’s a sign that there’s some friction on the council. I imagine there will be for awhile.”

MacLeamy, whose term as mayor ended Tuesday, insisted the role is more than a figurehead.

“The mayor is the symbol of the city, more than many of us realize,” MacLeamy said. “The mayor’s actions and comments are critical, because the mayor represents Novato in many ways. There are many demands on your time — you have to be available on weekends or during the evenings for events, because your presence builds goodwill in the community. People love it when the mayor shows up.”

Dillon-Knutson acknowledged that much of her time had been occupied during the past year while she cared for her husband, former Novato Sanitary District board member Arthur Knutson, who suffered a stroke and died Oct. 6. But that care never interfered with her council duties, Dillon-Knutson said.

“I treasured those duties, as they helped me cope in this, the most difficult time of my life,” Dillon-Knutson said in a statement.

Dillon-Knutson and the other members of the council said Wednesday that the council’s vote, while divisive, would not prevent them from working together to solve the financial and social challenges facing Novato.

Gray believes they can do it — but that Tuesday’s vote will make that challenge much more difficult.

“I think they have to bend over backwards to not look like they are as fractured as they appear to be,” Gray said. “They’re going to have to not only make amends, but make it look like they’re making amends.”

Copyright 2010 Marin Independent Journal. MediaNews Group.     FAC Content Use Policy

Critics are alleging that the Feather River Recreation and Park District’s held a special meeting to make key decisions in violation of the California’s open meeting law. They failed to inform the newly elected directors of the meeting or invite the local press. -db

Oroville Mercury-Register
December 7, 2010
By Mary Weston

OROVILLE, Calif. — The Feather River Recreation and Park District held a special meeting Thursday before the three new board members were sworn in, but not everyone was invited, including the Mercury-Register.

At the special meeting, the lame duck board of directors approved a five-year contract for General Manager John Buck, although his contract shouldn’t be up until January, and voted to buy the Hart’s Mill Fire Station in Berry Creek for $70,000.

The Thursday meeting was one day before the three newly elected board members were sworn in on Friday. The new board members also weren’t notified about the meeting.

Monday, it became apparent that many people who usually receive e-mail notices of park district meetings didn’t receive a notice or an agenda.

“It’s totally unethical, and it’s a violation of the Brown Act,” said newly elected director Bob Sharkey.

Buck’s contract should not have been up until January 2011, as he started on Jan. 18 with a one-year contract.

“They pre-empted us and straddled us with a five-year contract, which is unheard for a district manager,” Sharkey said.

Neither Buck nor office manager Sheryl Manies returned phone calls asking why neither the newspaper nor the new board members received notice of the meeting.

But Sharkey said Buck told him Monday the board approved buying the Hart’s Mill Fire Station for $70,000 and OK’d a new five-year contract for himself.

Sharkey said those decisions should have been made by the new board, rather than secretly at a meeting the new directors were not even told about.
Sharkey said he and probably the other new directors will challenge the decisions made at the special meeting, and ask to have them rescinded because the meeting was not properly noticed to people on the e-mail list.

According to the Brown Act, boards of directors of special districts can hold special meetings at different times from regular meetings. However, districts need to post a 24-hour notice and notify people and entities on its notice list.

Directors TJ Jenson, John Allen and Sharkey had planned to be sworn in Nov. 29, but said Buck told them he couldn’t have the paperwork done until Friday.

Meanwhile, the board held the special meeting Thursday at 4 p.m., and the new directors only found out about it Monday.

Jenson said he did not receive notice of the meeting, and neither Buck, Manies nor Chairwoman Jan Hill had returned his phone calls.

“This is unheard of for a district to do something like this,” Jenson said. “But I am more than willing for them to talk with me about it. They are going to have to work with me.”

Jenson said he had an appointment to talk with Manies and Buck last Friday, and they stood him up. He still doesn’t have a board packet or any binders he requested to catch up on past board business, he said.

Jenson said he would like to schedule a special board meeting to talk about why they were not sent notices, as well as the decisions made at the special meeting.

Another newly elected board member, John Allen, said he did not receive notice of the special meeting either. He said he usually receives notices via e-mail.

Allen said he is going to e-mail Buck and ask the decisions made in the special meeting be rescinded.

“This is unacceptable,” Allen said. “I didn’t think the board would stoop to this level. It’s really very childish.”

Hill did return a phone call late Monday afternoon, saying she didn’t know why the newspaper and new board members had not received notices. She said people from Berry Creek knew about it and packed the meeting.

Hill said Manies told her she had sent the agenda to the newspaper as well as to the new board members.

Hill insisted the meeting was properly noticed because it was posted on the website and at the office.

“I don’t know what else I can say,” Hill said. “But thank you for not blasting us about this in the newspaper.”

Later Hill called back and said she had found out that the newspaper had not received a notice because the server was down last week, so the e-mail list notices did not go out.

When asked why the meeting wasn’t then canceled or why people were not noticed in another way, Hill said she did not know.

The district will amend the mistake, as it wants to do everything correctly, Hill said.

However, she didn’t know if they would rescind the items approved at the meeting and schedule another meeting, as she would have to talk to Buck and Manies first.

Meanwhile, other people, including Rich Delaby, called to ask if it was true the district had a special meeting last Thursday because they also were not notified.

It’s unclear how the other board members and the people in Berry Creek who came to support the Hart’s Mill purchase received notice of the meeting since many of them also receive meeting agendas by e-mail.

The next regular meeting of the park district board is Dec. 14.

Copyright 2010 Oroville Mercury-Register     FAC  Content Use Policy

Fillmore’s mayor has alleged that a councilwoman violated California’s open meeting law, the Brown Act, when she told a newspaper the results of a closed session evaluating the city manager. -db

Ventura County Star
October 18, 2010
By Mike Harris

In the latest in a string of alleged Brown Act violations by Fillmore City Council members, Mayor Patti Walker has accused Councilwoman Laurie Hernandez of disclosing to a newspaper the confidential job evaluation of embattled City Manager Yvonne Quiring.

Walker made the accusation in an Oct. 6 memo to the council. She cited a Sept. 30 article in the Manteca Bulletin in San Joaquin County that reported Hernandez revealed the results of Quiring’s performance review. The review was conducted by the council Sept. 28 in closed session.

The article quoted Hernandez as saying three of the council members, including Walker, gave Quiring “a clean bill of health.” Hernandez said she was one of two council members who cast dissenting votes.

Among the communities the newspaper covers is Lathrop, where Quiring was city manager from 2007 until October 2008, when she resigned at the request of the City Council.

Hernandez’ disclosure, Walker alleged, was a violation of the Brown Act, California’s open-meeting law.

Click here for full story.

Copyright 2010 Ventura County Star     FAC Content Use Policy

A California court dismissed allegations that the Santa Ynez union Valley High School District Board violated the Brown Act, the state’s open meeting law, in meeting in closed session to consider complaints against a former principal. -db

Santa Ynez Valley Journal
October 14, 2010
By SYVJ Staff

The Second District Court of Appeals, in an unpublished decision, affirmed the trial court’s decision dismissing a suit brought by Norman Clevenger, alleging that the Santa Ynez Union Valley High School District Board may have considered evidence of complaints about him in a closed-door session which, he contends, would amount to a violation of the Brown Act.

Clevenger was the principal at Santa Ynez from 1999 to 2008, when his contract was not renewed. He is now the principal at San Marcos High in Santa Barbara.

Clevenger was notified by letter that the board would meet to consider complaints at its next meeting, and gave him the option to have those heard in a closed- or open-door session. Clevenger chose open.

A follow-up letter from the board then clarified that it would not be considering complaints, but rather only whether to renew his contract. He was advised the recommendation would be that he not be retained.

Clevenger appeared at the board meeting, where he and others spoke in open session. According to Clevenger, all of the comments were positive.

Superintendent Fred Van Leuvan stated in open session that he had “lost confidence in his [Clevenger’s] leadership and representation of the school.”

The board then met in closed session. On returning to open session, it was announced that Clevenger’s contract would not be renewed, but that he would be retained as a certified teacher, as he had acquired tenure. The trial court found that Clevenger had not met his burden of proof.

The Appellate Court found that Clevenger was not entitled to an open-session discussion, but that was given one by the board only because it was acting out of an abundance of caution. The court further found that Clevenger had received proper notice, and had in fact, never alleged otherwise. His other complaints were found to be without merit.

Finally, the court found that the board was “entitled to consider a superintendent’s negative assessment of his leadership as a valid reason not to renew,” and it did not accept Clevenger’s claim that the board must have considered complaints against him.

Copyright  2010 Santa Ynez Valley Journal     FAC  Content Use Policy

Santa Ana residents are finding it difficult to address the city council on matters of concern since the council always starts their meetings in closed session with no set time for resurfacing for the public session. -db

Voice of OC
October 7, 2010
By Norberto Santana, Jr.

Santa Ana resident Mike Tardiff has a couple simple requests for the members of his City Council. He would like them to start their regular meetings in public, and allow public comment before they adjourn to closed session.

It is a request that just about every City Council in Orange County would have no problem granting. But it’s a problem in Santa Ana, where members always start their meetings in secret.

On Monday, Tardif sat outside the eighth floor offices of the city manager, where the City Council was preparing to begin its closed session portion of the regular meeting, hoping to be able to plead his case before the closed session started.

He never got the chance. So later in the evening he addressed the council from the podium during the public part of the meeting.

“This is very inconvenient for Santa Ana residents,” Tardif said, adding that Santa Ana residents — unlike those across the rest of Orange County — aren’t even given the courtesy of knowing what time their regular council meeting starts.

“We don’t know if the council will start at 5:15, or 6:15 or 6:30 p.m.,” he said. “Not having a regular time for public speakers discourages those from addressing their elected officials.”

Even cities that hold a closed session before the public session usually convene in open session and then retire to closed session after hearing public comments about the closed session.

Santa Ana’s curious approach means that a resident can never really be sure when the council meeting starts. Many residents say they feel as if that’s exactly what council members want.

“It’s very frustrating, and often it’s done to thin out the audience,” said Peter Katz, 62, who has lived in Santa Ana for 30 years.

The practice is a major concern to open government advocates.

“I don’t think there’s any way you can achieve the Brown Act’s requirement to allow public comment on items in closed session without first convening in open session,” said Terry Francke, Voice of OC’s open government consultant and general counsel of the First Amendment advocacy organization CalAware.

According to Francke, the Brown Act says in general that there must be an opportunity on the agenda to address the body on anything that is on the agenda before or during the item being considered by elected leaders.

The only way to reconcile that with a closed session is to provide an opportunity before, Francke said.

“The closed session is part of the regular meeting,” he said. “And the regular meeting has to open in public session.”
He also said that Tardif has a point when he says that council members should have a set hour for the public meeting and says state law backs him up. “They have to state and stick to a fixed hour at which meetings will commence,” Francke said.

Francke said the violations were serious, adding that “these things are worthwhile bringing to the district attorney’s attention.”

Copyright 2010 Voice of OC | Orange County’s Nonprofit Investigative News Agency, Santa Ana, CA.
FAC Content Use Policy

A Los Angeles Times writer argues that the Supreme Court justices have no valid arguments for refusing to broadcast hearings. -db

The Los Angeles Times
Opinion
October 6, 2010
By Michael McGough

Unaware that video killed the radio stars, the Supreme Court has announced that it will make available, relatively promptly, audio recordings of its oral arguments. Any additional transparency is welcome, but the new policy of posting the audio on the court’s website every Friday begs the question: Why are the justices willing to be heard but not seen?

It couldn’t be that they refuse to show their faces for fear of a terrorist attack (an explanation once floated by Justice Clarence Thomas). They have no problem appearing in public — and on TV — when they are plugging their books. An alternative argument is that televising arguments might lead to the broadcast of out-of-context sound bites. But the same danger exists with audio quotations, and TV news directors can always air misleading quotes over an artist’s rendering of the justice asking the question.

The only remaining argument against cameras is that the court, like Mount Olympus, should be beyond the gaze of mere mortals. It’s time the justices came down to Earth — or at least C-SPAN.

Copyright 2010 Tribune Interactive     FAC Content Use Policy

The Plumas County Board of Supervisors formed an ad hoc committee to consider a Feather River College for a “temporary transfer” of funds not over $5 million. The supervisors want to expedite action on the request, and ad hoc committees do not have to give notice of meetings and post agendas in advance. -db

Plumas County News
September 22, 2010
By Joshua Sebold

The Board of Supervisors approved the formation of an ad hoc committee at their Tuesday, Sep. 14, meeting to address Feather River College’s request for a “temporary transfer” of up to $5 million from the county.

County Counsel Craig Settlemire advised the supervisors to create an ad hoc committee instead of an advisory committee because ad hoc groups don’t have to meet the requirements of the Brown Act.

The Brown Act requires governing boards and advisory committees to give notice before meeting and post agendas in advance.

“Based on the information we’ve received from the college, this is something that would probably require some quick action,” Settlemire said.

“We need a number of different meetings, and if we had to comply with the Brown Act to do that, it would slow the process down.”

An ad hoc committee consists of two supervisors, who can then decide who to consult, while an advisory committee designates county employees or other experts on a topic to sit on the committee with two BOS members.

Ingstad told the board he agreed with Settlemire’s suggestion.

College president Dr. Ron Taylor told the supervisors he was requesting “an advance on local property tax funds that would end up coming to us in any case eventually.”

Taylor is correct that the county will give a similar sum of money to the college eventually, but that normally wouldn’t happen until after Plumas taxpayers give the money to the county, which is also in the “eventually” category.

Bill Elliott, president of the FRC board of trustees, used a similar explanation when his board authorized the college to make the request, telling his fellow trustees the college would just be “taking our money early.”

Although true, it ignores the fact the county can’t get its money early: Plumas County residents don’t have to pay their property taxes until December and April.

The part no one can debate is the impact of the down economy on Plumas County.

“Due to the state budget impasse we are not receiving state apportionment funds since July at this point,” Taylor said.

“It’s getting to be a very dire situation, where we’ll basically run out of money here sometime in October we believe.

“I wanted to stress that it’s an ‘as needed’ request. In other words we want to work with the county in cooperation just basically to meet our basic needs during the months, month by month, if the state doesn’t have a budget.

“We understand there are difficult times for all publicly funded entities and I’m sure the county included.

“The county I’m sure has its own cash flow issues, and other districts are undoubtedly in a similar boat, but we are in a situation where it’s getting pretty crucial.”

He went on to address the relationship between the county and the college.

“If we can’t operate, obviously there’s an economic impact on the county in a variety of ways.”

“Our employees wouldn’t be buying things and events wouldn’t happen that draw people to local business and that kind of thing. I sure hope it doesn’t come to that.”

He also assured the board borrowing from the county wasn’t the only solution the college was pursuing.

“We’re looking at borrowing privately and things like that, but we think without this we might well be in a dire situation.”

Thrall told her fellow board members she and supervisor Lori Simpson would begin working on the issue that afternoon.

“What will this money be used for?” Ole Olsen asked.

“Basically our payroll and other basic expenses that are essential to keeping the college open,” Taylor responded.

“I see, you want to borrow money from the county and yet the county has had to lay off people because we don’t have the money. I mean, I just don’t get the reasoning there,” Olsen countered.

“Well it’s a matter of timing is the way to look at it,” Taylor suggested.

“You’ve got a bigger source of funds than the county does though, you know, coming from the state,” Olsen continued. “The state’s got a bigger, supposedly deeper pockets than we do, yet we have to let our employees off.”

“We’ve faced that already and probably will again in the coming months,” Taylor assured him.

In a phone interview later in the week, Ingstad said the committee met with him and other county employees and set up a meeting with the college to address questions.

He said the situation was very complicated for many reasons, partially because Settlemire informed him there is no case law pertaining to this kind of financial solution, only an education code saying this kind of transfer could be done.

A lack of case law means there has never been any related litigation, which suggests a county and college have rarely attempted it.

Ingstad said the county was taking the request seriously but had many questions such: What has the college done to cut spending? Can the county “temporarily transfer” funds from areas other than the general fund, which doesn’t have enough money?

Ingstad said the road and mental health departments had large reserves that in theory could be used. But, if the county could use those restricted funds for this kind of action, perhaps the college had restricted funds as well and he would have to investigate whether the college could use those instead.

He said even if the county considered helping the college, it would also have to think about whether other districts, like the Plumas Unified School District, would also need help sometime in the near future.

The CAO said ultimately those factors would have to be balanced to determine what was appropriate and best for the county.

He said the county was taking the request so seriously because of “the importance of the college,” which he said was “critical to the local economy.”

Copyright 2010 Plumas County News     FAC Content Use Policy

A Huntington Beach resident complained that the city council was bundling crucial budget information into “late communication” packets, making it difficult for citizens to know the importance of the information ahead of time. -db

Voice of OC
September 20, 2010
By Adam Elmahrek

Today the Huntington Beach City Council is scheduled to hold a public hearing to approve the city’s proposed 2010-11 budget, which has been posted in its entirety online, along with the City Council meeting agenda.

However, the process of assembling the budget, which included numerous study session meetings with all council members in attendance, was not as transparent.

Normally, the agenda for a local government’s public meetings is posted 72 hours in advance, along with all pertinent staff reports and public documents, per the Brown Act, the state’s open government law.

Yet many important budget documents from the study sessions — including details of staff and service cuts, organizational charts, and presentations — were hidden in information packets known as late communications, leaving residents with little sense of the gravity of what was going to be discussed.

This is unacceptable to Tim Karpinski, a Huntington Beach resident who keeps a close eye on City Hall.
For people who want to speak “during public comments at the study session, there’s no way for them to do their homework,” Karpinski said.

A review of the past budget study sessions online shows the city failed to post related documents in each instance. City Clerk Joan Flynn said only documents submitted after the distribution of the normal agenda — usually posted on the city website by Thursday or Friday — end up in the late communications packets.

When pressed on these failures, both Flynn and City Administrator Fred Wilson acknowledged the city could be doing a better job of reaching out to the public.

And both attempted to lay the blame at the other’s feet.

Wilson says it’s the city clerk’s practice to have late communications available in her office without public notification of their availability and without them being posted online. “I think that’s the policy of the city clerk to do it that way,” Wilson said.

Flynn says she follows the law, which mandates that communications be made available right away at the clerk’s office. But Flynn also said clerk staffers just don’t have the resources to post the documents online as soon as they are received.

She said Wilson’s office could do a better job of having study session documents ready at the same time as the normal meeting agenda. Flynn said the latest a document could be submitted for inclusion in the agenda packet is Tuesday of the week before the meeting.

Wilson “can make a difference in this by saying the items have to be made available at the time of the agenda,” Flynn said.

In the last budget study session, a large document bundle — containing city organization charts, potential staff cuts and interdepartmental memos — was submitted in a late communications packet.

According to Flynn, the city’s lax policy on making study session documents available goes back to the previous city administrator’s policy on PowerPoint presentations. Because the presentations back then were deemed mere “talking point” documents, Flynn said, the city administrator made it OK to leave them out of the normal agenda packet.

“It’s just the way we’ve allowed the organization — in the way we present materials — to evolve,” Flynn said.
Nonethess, in the past Huntington Beach officials have buried important information in late communications packets.

For example, a report from the city attorney regarding the law surrounding a controversial mobile home park subdivision was found in a late communications packet. Only a few were available at the meeting, and the city clerk made a quick, vague announcement about it without any indication of the nature of the communication.

At the time, Voice of OC’s open government consultant Terry Francke said that kind of approach revealed a gap in the Brown Act.

“It doesn’t do the audience much good if it’s given some kind of vague label and they’re not reminded they can get a copy,” Francke said.

And Flynn acknowledges that residents were up in arms three years ago when city staff buried key information on a right-of-way issue in a late communications packet.

But both Flynn and Wilson contend that they are doing everything that the law requires.

“When is enough enough? How much work do we have to do?” Wilson asked.

Copyright 2010 Voice of OC | Orange County’s Nonprofit Investigative News Agency, Santa Ana, CA.

FAC Content Use Policy

During a Novato City Council meeting, a man speaking on an immigration ballot issue addressed the audience rather than the council so the mayor called a recess. The man continued to address the audience and was arrested for disrupting the meeting. -db

Marin Independent Journal
September 16, 2010
By Rob Rogers

Police arrested lawyer and immigration activist Jerome Ghigliotti at Novato’s City Council meeting Tuesday night and led him away in handcuffs after the council declared his actions in support of the city’s controversial E-Verify ballot measure to be out of order.

Ghigliotti, a spokesman for Citizens for Legal Employment and Contracting, had planned to criticize the Novato council for refusing to place a measure on the Nov. 2 ballot that would require contractors working for the city to determine the immigration status of their employees using a federal database. Although Ghigliotti’s group obtained signatures from 12 percent of the city’s registered voters – more than the 10 percent required to place a measure on the ballot – city officials have declined to sign off on a measure that would conflict with federal law.

As he has in the past, Ghigliotti rose to speak Tuesday during the council’s “open time” for public comment – but turned his back on the council, preferring to address the audience at Novato’s City Hall.

His refusal to address the council or respond to its requests led Mayor Jeanne MacLeamy to call a recess. While the council left its chambers, Novato Police Chief Joseph Kreins approached Ghigliotti and asked him to stop speaking.

“I told him, ‘You need to sit down and stop disturbing this meeting. If not, you will be under arrest,’” Kreins said. “He said to me, ‘You do your job and I’ll do my job,’ and he went on reading his statement.”

Kreins and another officer handcuffed Ghigliotti and removed him from the building.
“He definitely was disruptive to the meeting,” Councilwoman Denise Athas said. “I think the mayor did exactly the right thing. It’s not a good thing for the town to witness that kind of disruption.”

Athas said the council was concerned not only by Ghigliotti’s actions Tuesday, but by comments he made during the Aug. 24 meeting that appeared threatening to council members.

“He started talking about his belief that the council had taken away the rights of citizens to vote, and then he rambled on in a diatribe about illegal immigrants killing people,” Kreins said. “Towards the end of his statement, he said – and we have this on tape – ‘But they (the council) already know about these people, and they’re ignoring them. I’ve never done so in the past, but I do so now. I wish one of the council members’ son or daughter or granddaughter was murdered or raped by an illegal alien.’”

Ghigliotti admits he made the statement, but said he has not personally threatened any member of the council or her family.

“I said what I said in order to bring them to reality,” Ghigliotti said. “It’s like telling someone if they cross the street against a red light, they might be hit by a car. Their conduct would precipitate this.”

Novato police placed Ghigliotti in a police cruiser, brought him across the street to police headquarters and issued him a citation for disturbance of a public meeting, a misdemeanor. He is scheduled to appear in Marin Superior Court at 1 p.m. Oct. 5.

After his booking, Ghigliotti was released, he said, “on the promise that I would not go to the meeting.” He said he is seeking legal counsel for his Oct. 5 hearing.

“He’s not banned from any future meeting,” Kreins said. “He is welcome to attend any at any time. All we ask is that he follow the rules, common sense and decorum, and treat everyone respectfully. That’s all anybody asks of the public attending a meeting.”

Ghigliotti insists his appearances at Novato’s council meetings are on behalf of those voters who want to see the E-Verify system become a Novato requirement. The city already uses the system to check the status of its own workers, but does not do so for its contractors.

Council members say they’re taking no action on the matter on the advice of City Attorney Jeff Walter and City Manager Michael Frank. Both have urged them not to support a measure that could be declared unconstitutional, because it would allow the city to punish offenders in matters that fall under federal jurisdiction.

Marin County Registrar of Voters Elaine Ginnold said that while the council is generally expected to place a measure supported by enough valid signatures on an election ballot, there is no deadline by which it must do so.

“When an election is held is up to the city. Just because they’re not holding it right now doesn’t mean they will not have an election,” Ginnold said.

Copyright 2010 Media News Group     FAC Content Use Policy

Exeter District Ambulance has admitted it violated the Brown Act, California’s open meeting law, and is taking steps to insure that the public is allowed to make comments. -db

The Foothills Sun Gazette
September 15, 2010
By Reggie Ellis

Exeter District Ambulance has made its mistakes, taken its lumps and is well on the road to recovery.

In a response letter to the 2009-2010 Grand Jury Final Report, Board President Kerry Elbisi wrote that the district concurred with all Grand Jury’s findings, including a clear violation of California’s open meeting law, but that the district is rectifying all of its mistakes and moving forward.

The Grand Jury’s investigation was in response to numerous complaints of conflicts of interest of board members and violations of the Ralph M. Brown Act, California’s law regulating public meetings. The Grand Jury claimed the ambulance board did not offer an opportunity for public comment at a public meeting on May 7, a violation of the Brown Act. The Grand Jury also said the district was unable to provide an agenda for that meeting.

‘The Board concurs and while the Board of Directors acknowledges the infraction of the Brown Act as per the finding, this infraction was unintentional and there was never a desire to deprive the public the opportunity to make a public comment,’ Elbisi wrote.

In its report, the Grand Jury stated that ‘no conflict of interest was substantiated’ for the four board members who were city employees (City Manager John Kunkel, Assistant Public Works Director Daymon Qualls, FTO Kerry Elbisi, Officer Brett Inglehart) and another who had a contract with the city (Sonny Lowry, owner of Body and Paint by Sonny). The claims of conflict of interest were further debunked when voting records showed that no more than one eligible citizen has filed candidacy papers to run for a seat on the board since 2000. In fact, when Kunkel resigned in November 2009, the board did not receive applications until more than 60 days after the vacancy and appropriately turned the decision over to the Board of Supervisors. On Feb. 9, Supervisors appointed Garrett German, a financial advisor with no ties to city government.

However, the finding went on to state that ‘there were occasions where the City employees were receiving pay from the City at the same time they were conducting Board business and also receiving pay for serving as a Board Member.’

Elbisi agreed with the statement. But while there may be some impropriety with the practice, local city attorneys said they were not sure of any law that prohibited a salaried city employee receiving compensation while serving on a board.

The Grand Jury also said the district was in violation of state law by having one board member who failed to file a Form 700 statement of economic interests with the California Fair Political Practices Commission. Elbisi agreed with the statement, but clarified that the district had the document but was unable to locate it and that now ‘There is a current Form 700 on file for each board member.’

In another violation of state law, the report stated that ‘One board member who has been on the board for more than 10 years has no record of ethics training until Dec. 19, 2009.’ Passed in 2005, AB 1234 requires that all board members receive ethics training every two years.

‘The Board member who had not completed the ethics training complied with the training as of Dec. 12, 2009. There are currently three board members who need to recertify and that is in the process and will be completed soon. We appreciate the Grand Jury bringing this to our attention and compliance will be maintained in the future.’

Moving forward, Elbisi wrote that the district is complying with each of the Grand Jury’s recommendations. Elbisi wrote that the board will hold an open session and provide an opportunity for public comment at every meeting, including special meetings with only one item for closed session on the agenda. Elbisi also wrote that a podcast of Tulare County’s Government 101 presentation ‘has been recorded and will be distributed to each board member along with handout material. Each board member will listen to the podcast and acknowledge they have received the training. It will be a policy that all new members of the Exeter District Ambulance Board of Directors will listen to the podcast of the Government 101 training.’

All of the complaints to the Grand Jury were filed ‘shortly after the Board decided to contract out the management of the ambulance services’ to Lifestar, a private ambulance company based in Tulare. However, all of the incidents mentioned in the report happened prior to Lifestar officially taking over on July 22, 2009. Jackie Paull, operations manager for Lifestar and Exeter District Ambulance, said that the ambulance district board meeting have been much quieter recently and that the district is running smoothly. The district’s response times are thriving, even to Three Rivers, under county-wide dispatch system implemented by the Central California Emergency Management Services Agency. The district has already purchased two new ambulances and other equipment upgrades. When the board voted to hire the private company to manage the public ambulance agency for the first time in its more than 30 year history, Board President John Kunkel defended the position by saying the move would save the district over $100,000. Despite modest estimates in last year’s budget claiming that the savings would only be about $29,000, the district’s 2009-2010 Fiscal Year ended with a net income of $291,604.89.

Exeter’s ambulance district was formed in March 1977 after 63% of the voters living in the 592 telephone prefix approved the special tax district. The district encompasses all of Exeter and Lindcove and extends west to Road 176, east to Road 236, north to Avenue 320 and south to Avenue 256.

Copyright 2010 Mineral King Publishing     FAC Content Use Policy

A trial starts this week brought by parents seeking to throw out boundaries for the new Yorba Linda High School. The lawsuit is partly based on the allegation that the superintendent and board members held private meetings on the boundaries. -db

The Orange County Register
September 12, 2010
By Jessica Terrell

YORBA LINDA – A group of parents will get their day in court Monday when a trial starts for two lawsuits seeking to have the boundaries for Yorba Linda High School thrown out.

The parents want their families included in the attendance area of the school, which opened in 2009.

The lawsuits allege that Placentia-Yorba Linda Unified Superintendent Dennis Smith violated the Brown Act by having private meetings with school board members and contend that the district failed to properly consider potential environmental impacts when setting the boundaries.

The district denies both contentions in the non-jury case being heard by Orange County Superior Court Judge Gail Andler.

“It’s absolutely incorrect that there was a violation of the Brown Act,” said Smith, who declined to elaborate.

Under a plan Smith supported, all Bryant Ranch and an estimated 55 percent of Travis Ranch elementary students will continue on to Yorba Linda High. Travis students who live south of the major thoroughfare of Yorba Linda Boulevard will head to Esperanza High instead.

Parents argued at board meetings to have all students from both schools attend Yorba Linda High.

Although the suits center on the Brown Act and the California Environmental Air Quality Act, one of the biggest complaints opponents have is that the boundary lines split students who have been attending school together since kindergarten, said Gina Lemos, a plaintiff. Lemos said Travis students who aren’t continuing on to Yorba Linda High are being ostracized and bullied by fellow students.

Other plaintiffs include the group Friends of PYLUSD and parent Theresa Stull.

Copyright 2010 Orange County Register Communications     FAC Content Use Policy

The regents of the University of California may change their media coverage policy next week by allowing more public access to its meetings and allowing recording, videotaping and photographing. -db

San Francisco Chronicle
September 10, 2010
By Nanette Asimov

The University of California Board of Regents is expected to toss out a long-standing policy next week restricting public access to its meetings, and to affirm the public’s right to record, videotape or photograph proceedings.

The regents will decide the issue Wednesday in San Francisco, two months after The Chronicle published a story about UC officials barring a filmmaker from entering a regents meeting in apparent violation of California’s Bagley-Keene open meeting law.

If approved, an eight-paragraph “policy on media coverage” restricting recordings to accredited members of the press would be replaced with a one-paragraph “policy on public access.”

“Meetings of the Board of Regents shall be conducted in compliance with California open meeting laws applicable to the University of California,” it says, stating that people may record or tape meetings if they aren’t disruptive.

“The law clearly requires that they change the policy, and this seems like a fine way to do it,” said attorney Michael Risher of the ACLU of Northern California, who had called on the regents to update their policies in July, after three UC spokespersons questioned filmmaker Ric Chavez or barred him from the public meeting.

Bagley-Keene allows anyone to quietly record or videotape public meetings. It also prohibits state officials from requiring attendees to identify themselves.

But Wednesday, July 14, Chavez, unaware of his rights, e-mailed UC’s public information office asking permission to film the regents. UC spokespersons laid out the restrictions, and asked Chavez to identify himself and explain what he would do with his film.

Ultimately, they said he could not be accommodated in the press section – the only place cameras have been permitted.

Chavez showed up the next day anyway. That’s when a UC spokeswoman barred him from the auditorium with his camera.

A Chronicle reporter, present during the incident, wrote up the story. State Sen. Leland Yee, D-San Francisco, and several advocates for open government then urged the regents to reconsider their policy from 1975, even as UC attorneys were already taking a look at it.

UC officials also met with Peter Scheer, executive director of the First Amendment Coalition in San Rafael, to talk about improving access.

“They were very open to addressing it,” Scheer said. “It would appear they are trying to reboot here with a clean slate and do it right.”

Steve Montiel, a UC official who had questioned Chavez, is a board member of the First Amendment Coalition, and a former journalist.

“We made a mistake at the last regent meeting,” he said. “We took another look at our policy and concluded that, in this day and age when everyone can be a reporter, we needed to open up access to as many people as possible.”

As for Chavez, his reaction suggests what’s in store: “You Tube,” he said, “meet the UC regents!”

Copyright 2010 Hearst Communications Inc.   FAC Content Use Policy

The Chula Vista Elementary school board says that their gatherings before board meetings in the superintendent’s office to eat take-out food and to ask one-on-one questions of the staff are open to the public and not in violation of California’s Brown Act, the state’s open meeting law. -db

San Diego Union-Tribune
September 2, 2010
By Ashly McGlone

Chula Vista Elementary school board members have been gathering in the superintendent’s office before their public meetings, asking questions about agenda items and eating restaurant take-out food paid for by taxpayers.

State law generally requires elected officials to post public notices so citizens can attend when public business is discussed with three or more board members. But district officials say the pre-meeting sessions are not subject to those requirements.

The practice raises the possibility that a consensus could be reached in private, depriving the public of the right to know what went into board decisions.

The Watchdog reviewed minutes of all board meetings from December 2008 to the present. Of 130 motions, 129 passed unanimously. The one split vote, in February, concerned the order of agenda items.

Records obtained by The Watchdog under the California Public Records Act reveal $2,035 in meals have been billed to the district’s general fund since December 2008.

According to board vice president Larry Cunningham, food is “always there. If we have a board meeting, it’s there.” He said the meals have been standard practice since he joined the school board more than 16 years ago and no one has ever raised a concern.

The informal gatherings give board members a chance to grab a bite to eat and get their questions answered by staff members, Cunningham said.

“If you have a question to ask staff, you have a chance to go ask staff about that. It is nothing. We don’t meet with closed doors. The doors are always open,” Cunningham said. “We find it is easier to do that than ask a lot of questions at board meetings. We feel the board meetings are there for input for the public.”

Max Batangan, assistant to the school board and the superintendent, distributes meeting agendas and notifies members of any changes, according to the superintendent and board members.

Superintendent Lowell Billings, who is set to retire in December after nine years as superintendent, said, “It is a staging for the main board meeting which is held in open session. Meaning, you gotta have a place to show up, and I hold it in my office, so I am the gatekeeper.”

Generally, board members said the meeting allows them to ask one-on-one questions of staff members for clarification.

“I read the packet myself. The protocol is to take any questions to the superintendent or other district staff for more verification or information,” board member Douglas Luffborough said.

The idea of one-on-one questions may be a key distinction, experts said, as any group discussion of issues in the pre-meeting would be forbidden under the state’s open-meetings law, known as the Ralph M. Brown Act.

Dan Hentschke, a former Oceanside, San Marcos and Solana Beach city attorney and current general counsel for the San Diego County Water Authority, conducts trainings for elected officials on open-meetings law. Briefings on changes to the night’s agenda could be an issue, he said.

“Updating collectively, that’s a problem,” Hentschke said. “If they are hearing collectively information, that should be held in an open meeting.”

“These kinds of meetings are ones that we use as an example of ones that can be very problematic,” Hentschke said. “The law is very clear that gatherings of a majority of a legislative body have to be open-noticed and public if there is any discussion among the board members of public business. Gatherings of this nature can be held in compliance, but it is very difficult because they cannot talk about matters of agency business.”

Attorney Michael Jenkins, chair of Brown Act Committee for the League of California Cities, also said that a notification of agenda changes would be considered school business.

“Under the Brown Act they are not allowed to hear, discuss or deliberate on any matter of district business. That’s a problem because that’s business that pertains to the school district. It’s just not a good idea to have them all together,” he said. “I can’t say if their particular practice is a violation. I will say it could be under certain circumstances that they need to avoid.”

Theresa Acerro, president of the Southwest Chula Vista Civic Association and a retired teacher, said, “I would be really concerned about that. I think those questions should be asked in a public meeting because it is likely that members of the public would have those same questions.”

Former district board member and retired economics professor Peter Watry, 79, also expressed concern over the board dinners. Watry — who said the meals were not present when he served on the board from 1976 to 1980 — currently serves as vice president and acting president of the nonprofit Crossroads II, aimed primarily at monitoring land use decisions by the Chula Vista City Council.

“If they are following the Brown Act, they shouldn’t be doing it,” said Watry. “Even that one-on-one gets tricky. If you talk to a third person, you violate the Brown Act. My guess is they are just not paying attention to the strictness of the rules, but they should not be doing it.”

A favorite meal for the board sessions was the $110 large kabob pack from Daphne’s Greek Cafe. Other meals came from China China restaurant and Pat & Oscar’s. Some food was also prepared by the district’s Child Nutrition Services.

The spending on meals comes despite the financial issues facing most school districts in the state.

At Chula Vista, managers are taking seven furlough days this academic year and next, while classified staff will take two to six furlough days and teachers will take 5.5 furlough days, two of which are class days shortening the school year. No furloughs were in place last year.

Also, this year is the first year the district’s 20:1 class size cap has been removed. Average class sizes this year are 19.9 children for kindergarten through third grade, and 28.9 children for fourth through sixth grade. Last year’s average was about 18 students.

Billings said the food is for board members and other district staff but members of the public could come to the pre-meetings.

“Anybody can walk in and see them and I am there to be the sergeant of arms of board members,” Billings said.

But Acerro countered, “That’s no public meeting, and besides they have to have publicly notice meetings, and if it’s not a meeting, they shouldn’t be all together discussing school business,” she said.

Billings contends there is no Brown Act violation.

“Everybody in the work knows that these meetings take place. They are really not meetings, but a gathering place,” Billings said. “If a board really wanted to violate the Brown Act, they would be more secretive or subversive or meet in a covert matter.”

Copyright 2007 Union-Tribune Publishing Co.    FAC Content Use Policy

A mayoral candidate has complained that the Morgan Hill City Council’s public hearing policy lacks flexibility. The issue arose when the candidate tried to comment on an agenda item without having
filled out a speaker card. -db

Morgan Hill Times
September 6, 2010
By Michael Moore

The city council’s public hearing policy – which allows citizens to state their piece at the body’s meetings – might comply with state laws guaranteeing openness and a chance for participation, but some residents have complained that the policy lacks common sense.

Complaints first arose with a poorly-timed public speaking request by mayoral candidate Art College at a meeting this summer, which was denied by current Mayor Steve Tate – a denial that College alleged was a violation of the Brown Act, the state’s open meetings law.

City officials and the mayor say the policy which asks potential public participants at council meetings to submit a “speaker card” if they want to comment at the meeting, is intended to keep the meetings organized, punctual and civilized. They note that the city’s policy, which was first drafted in 1997 and last reviewed in 2007, is not much different from other local public agencies’ public hearing guidelines.

“I think Morgan Hill’s policy is very reasonable in terms of giving people the opportunity to hear the staff report and content of the agenda item” they want to comment on, said city attorney Danny Wan, a former Oakland council member.

Furthermore, the Brown Act allows city councils to adopt “reasonable regulations” that “ensure the intent of public open meetings” exists, Wan noted.

“Clearly, the city council and the mayor have the right to adopt reasonable rules about the way the meeting is conducted,” Wan said.

Without such policies and procedures, meetings could devolve into shouting matches, potentially extending the length of meetings inordinately, according to Wan and Tate.

Wan added that Tate did not violate the Brown Act, and said the section of the law that College cited in his complaint, which was issued in the form of a public comment at the July 28 council meeting, forbids public agency boards of directors such as the city council from requiring people to sign in to attend their meetings. Morgan Hill does not ask meeting attendees to sign in.

College’s initial complaint, which has not been issued in writing, said the city’s requirement to fill out a speaker card – a yellow form available in a stack at the entrance of council chambers – is illegal because it asks for the speaker’s name. The Brown Act, he noted, allows meeting attendees to remain anonymous if they choose.

While city officials have clarified that speaker cards and names are not required, the city still should correct a public participation provision that requires speakers to submit the cards before the public hearing begins, College maintains. Each council meeting is divided into individual agenda items. Most items include a report by city staff, followed by a hearing for the public to offer input or ask questions. The hearing usually precedes council discussion and a council vote.

The city’s policy says speaker cards must be submitted before the mayor opens the public hearing in which the participant wants to speak. (Members of the public may also speak at the beginning of each meeting if the topic they want to discuss is not on the agenda.)

When College raised his hand noting his desire to speak at the July 21 meeting, on an agenda item related to the county’s weed abatement program, the mayor did not let him speak. College raised his hand during the open public hearing, after other members of the public had already spoken.

“There’s no requirement (in state law) that I have to let them know (I want to address the council) before the public hearing starts,” College said. “The Brown Act says any individual may speak on any item before them. They must allow input.”

The purpose of the timing requirement is to prevent the meetings from turning into a debate among members of the public, some of whom might use the forum to respond to a public comment rather than to the city’s proposed business, Tate said. Plus, it gives the mayor, who presides over council meetings, an idea how many people will speak and how long the meeting might last.

“The agenda item is held, a staff report is given and based on that you should know if you want to give input or not,” Tate said. “We’re just trying to get input. We’re not up there to facilitate debate.”

But flexibility – or inconsistency – is the unwritten part of the city’s public participation policy. The mayor “has some discretion” on how to enforce the rules, Wan said.

Tate acknowledged that he has been inconsistent in allowing other speakers to submit cards after the public hearing began. He tries to make such spontaneous exceptions based on whether or not the participant intends to debate another citizen or simply add input for the council to consider.

“(But) if you say you have to put a strict policy on that, you lose the flexibility,” Tate said.

He said he wants to talk to another critic of the policy – Frank Manocchio – to discuss potential guidelines that keep the rules consistent.

The city’s policy sounds “reasonable” in its adherence to the Brown Act and support of freedom of speech, but the flexibility to make exceptions to the rules on a case-by-case basis is key, according to Peter Scheer, executive director of the First Amendment Coalition.

“There’s no reason why members of the public can’t use their opportunity to speak to debate with each other,” Scheer said. “But you’ve got to draw a line someplace” – for example, if 10 people jump up at once to speak in the middle of a public hearing.

“It sounds like, overall, the procedures and rules (Morgan Hill has) are fairly open and flexible,” Scheer said.

Other agencies have speaker-card policies that are similar to that of Morgan Hill – including the Morgan Hill Unified School District, the Santa Clara Valley Water District and the Caltrain board of directors.

And these agencies’ directors have been known to make exceptions to the rules on-the-fly during public hearings, allowing people to speak out of turn if they seem unfamiliar with the procedure, or if they insist they have additional unique input.

Since the July 28 meeting, city officials changed the wording of the speaker cards and the policy posted outside council chambers to reflect that filling out a speaker card is not required, but is “helpful” to those who conduct the meeting.

The changes were for clarification, because the literature previously cited the wrong section of the Brown Act – and city officials did not know that until College pointed it out, Wan said.

Plus, while the city ordinance identifying the council’s policies and procedures says potential public speakers are “requested” to fill out speaker cards, the posting outside council chambers says a speaker card is not required. The ordinance, which not posted in its entirety at city hall, says upon addressing the council the speaker “is required” to state his or her name and place of residence.

However, Wan said submitting one’s name in order to offer input at a public hearing is not required at Morgan Hill council meetings, or at least is not heavily enforced.

But prior to the changes, how would one have known this if they had never attended a council meeting before, Manocchio wondered.

Manocchio, who attends most council meetings and frequently addresses the body on a variety of topics, submitted a speaker for all eight agenda items at Wednesday’s council meeting. He did so because at the beginning of the meeting he did not yet know if he wanted to speak on all the items, but once he received new information when city staff’s discussion began he might change his mind. He declined to speak most of the times when his name was called.

He said “it’s not that big a deal” in terms of scheduling to allow a couple more people to speak for three minutes each, and it is important to let someone address the council if they thought of an important point or question at the last minute.

“They pick and choose the rules they want to obey,” Manocchio said. “It’s just a matter of common sense and courtesy.”

Copyright 2010  MainStreet Media Group     FAC Content Use Policy

A San Bernardino County teamster’s union has charged the Mountain Area Regional Transit Authority with failing to convene in open session before adjourning to closed session, a violation of the state’s open meeting law, the Brown Act. -db

Big Bear Grizzly
August 27, 2010
By Arrissa Owen Turner

Mountain Area Regional Transit Authority violated the Ralph M. Brown Act, as well as California Labor Laws, according to the drivers and dispatchers’ teamster union.

In a letter from Carol Greene, San Bernardino County deputy county counsel, she states that “it is conceded that the (MARTA) board did not call itself to order prior to adjourning to closed session.” Greene states that as such any action taken in closed session would be considered null and void. However, there was no action taken in closed session so no corrective action to be nullified, Green states.

Green writes that in the future, the MARTA board will ensure any meetings are convened in open session before the board adjourns to closed session as required under the Brown Act.

Green’s letter was sent to Elizabeth Garfield, attorney for Union 572, in response to a letter sent by Garfield on Aug. 19 claiming the MARTA board violated the Brown Act.

Garfield also claimed the Employer-Employee Relations Resolution passed by the boar at its Aug. 16 meeting violated the California Labor Laws because MARTA representatives did not negotiate with Teamster Union 572 representatives prior to adopting the resolution.

Union representatives charge that there was not enough notice given prior to the resolution appearing on the agenda for the Aug. 16 meeting. The union was notified on Aug. 12, according to Greene. Lonnie Holmes, the union representative, did not have enough time to raise detailed objections and concerns prior to its passing, Garfield wrote.

MARTA will take no action to enforce the resolution until after a subsequent board meeting in September when the board will vote whether to adopt the resolution again, Greene states.

Kathy Hawksford, MARTA general manager, rejected the most recent offer presented by MARTA employees’. Union representatives also state that MARTA administration violated labor laws by imposing a deadline on negotiations. Union members are scheduled to vote on another MARTA offer on Sunday, Aug. 29.

Copyright 2010 Big Bear Grizzly   FAC Content Use Policy

The Fontana Unified School District board president said he stopped citizens from talking during public comment period because according to California Education Code Section 7054, citizens could not discuss district issues at school board meetings to promote ballot measures or political candidates. -db

Fontana Herald News
August 26, 2010
By Alejandro Cano

It has happened at least twice at School Board meetings in the last few months: Fontana Unified School District Board President Gus Hawthorn interrupting people during public comments, saying he would turn the microphone off if the speaker’s topic is not changed.

Some observers have claimed that Hawthorn’s actions are a violation of the Brown Act, which guarantees the public’s right to attend and participate in meetings of local legislative bodies.

However, Hawthorn defended himself by saying he is following the California Education Code.

On Aug. 18, Jess Vizcaino, a representative of Rep. Joe Baca (D-Rialto), was interrupted by Hawthorn as soon as he began praising the work Baca has done for the region.

In May, then-San Bernardino County controller candidate Alfred Palazzo was also stopped when he offered some ideas on how the district could save money.

Hawthorn said in both instances the speakers were “politicking,” and if this practice was allowed, he could face penalties of up to a year in jail and fines not exceeding $1,000, because he would be violating California Education Code Section 7054.

“The Fontana Unified School District board meetings are a limited public forum, which means that the public has a right to speak, but only as it relates to educational business or board business. It is not a general public forum where anything and everything can be discussed,” said Hawthorn. “It is really a board business meeting conducted in public so that members of the community, and anyone else who is interested, can understand how and why things are done. It is not a forum given to politicians to make campaign speeches for their political offices.”

Section 7054 states that “no school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”

In other words, “the boardroom cannot be used to promote or sanction a candidate for office,” added Hawthorn.

“This is not a Brown Act situation,” he said.

The Brown Act, authored by Assemblymember Ralph M. Brown, is a series of statutes that intends to create transparency in governing bodies, whether they are county government, city council, school board, college districts, commissions, committees, task forces and advisory bodies, among others.

Since its inception in 1953, the Brown Act has been a significant rule for government leaders and a violation of it could bring serious consequences.

Fontana’s interim mayor, Frank Scialdone, learned about the subject days after he shut the microphone off when Edgar Montes, a local activist, was speaking during the public comments section of a City Council meeting in July.

Scialdone later apologized during another City Council meeting, and Montes accepted the apology.

“At least he understands that shutting the microphone off is a clear violation; they should learn this in Government 101,” said Montes.

Meanwhile, Hawthorn emphasized that he is “compelled to strictly follow the law,” meaning he will not allow anybody to make political remarks during school board meetings.

“My intent is to let anyone speak at the board meeting as long as what they say is legal. Individuals have been allowed to speak even when I did not agree with what they were saying or knew that their remarks were inaccurate at best or false at worst,” said Hawthorn. “This will always be the case as long as I am board president.”

Copyright 2010 Century Group    FAC Content Use Policy

On the heels of a Superior Court judge’s decision to dismiss a lawsuit alleging Brown Act violations by the county Board of Supervisors, the Visalia Times-Delta argues that the judge should have recognized the overriding importance of the public’s right to know how elected officials conduct public business. -db

Visalia Times-Delta
Editorial
August 26, 2010

Naturally, we at the Visalia Times-Delta and Tulare Advance-Register were disappointed that Tulare County Superior Court Judge Melinda Reed dismissed a lawsuit alleging Brown Act violations by the county Board of Supervisors.

But we were no more disappointed than those at 800 other member newspapers of the California Newspaper Publishers Association, which had also joined the lawsuit by First Amendment advocate Richard McKee over the practice of supervisors meeting in private over lunch.

The defendants have characterized this legal action as frivolous and spurious, but it is anything but. The principles surrounding this case are paramount. They include the effectiveness of California’s open-meetings law. They include the right of the public to know how their elected representatives conduct public business. They affirm the importance of open government on behalf of the people.

We’re disappointed because those important principles of the law were not affirmed in our local court. They should have been, because the flouting of the Brown Act violated the trust of the people of Tulare County, and people ought to be outraged over that.

We need to make one thing clear: This newspaper did not initiate the lawsuit. It was filed by an advocate and expert in open government. The Times-Delta/Advance-Register joined it only after it was filed, along with the California Newspaper Publishers Association. We joined it because of the importance of the principles of open government on behalf of the people.

In a nutshell, the plaintiffs, including this newspaper, alleged that supervisors met over lunch as a voting majority 46 times last year. The supervisors billed the public for those lunches and certified that they were “work-related” and for “official business only.” We believe that this is an admission that the majority was conducting county business. The Brown Act prohibits a voting majority of elected officials from meeting in private, except for purely ceremonial or social situations.

The court ruled that the plaintiffs had failed to allege that supervisors conducted official business at the lunches and refused to let the lawsuit move forward to trial on the merits. We’re astonished at the ruling because it puts an unfair burden of proof to allege specific details of Brown Act violations on the plaintiffs at this early stage of the lawsuit.

The proceedings of a secret meeting are by definition secret. Direct proof is possible only if someone at the meeting reveals the proceedings.

According to that logic, the Brown Act is toothless and might as well not exist.

It’s disappointing that a local judge would not allow local plaintiffs to have their day in court.

Those principles will not be tested here in Tulare County, but they will be tested, whether on appeal or in some future action. We look forward to seeing them affirmed on the side of open government and on behalf of the people. It is the people who will benefit, and they have told us that they demand and expect open government.

The public should be outraged that their elected officials so blithely dismiss action on behalf of open government as “frivolous.” They should be outraged that they are being played for suckers.

If people are content to pay for lunches at secret meetings by their elected supervisors, so be it.

But they ought to be angry. They ought to demand that their business be conducted in the open. They should express their frustration to supervisors. Write them at 2800 W. Burrel Ave., Visalia, CA 93291. Or write the newspaper at Box 31, Visalia, CA 93279.

They should tell officials they want their government to be open and public, and they will go to any length to ensure that happens, even to trial in a court of law. We accept nothing less.

Copyright 2010 Gannett     FAC Content Use Policy

Los Angeles County have asked departments to investigate inappropriate disclosure of child welfare information, but in making the request in a closed meeting, according to legal experts, have violated the California’s open meeting law, the Brown Act. -db

Los Angeles Times
August 15, 2010
By Lisa Girion

Los Angeles County officials are investigating information released regarding a string of child death and neglect cases involving the Department of Children and Family Services. The information appeared in a series of Los Angeles Times stories.

On Tuesday, county Chief Executive William T Fujioka will ask the Board of Supervisors to direct all departments to aid an “inquiry related to the inappropriate disclosure of confidential child welfare information, and, in consultation with the County Counsel, report back on the findings.”

The meeting’s agenda also states that comments will be taken on the proposal.

Two sources familiar with the probe said the inquiry was authorized more than a week ago and was all but complete. The investigation was launched during a closed meeting of the Board of Supervisors without public notice, the sources said. The results of the meeting were never formally publicized.

Fujioka did issue a statement saying “the sole basis for our review at this point in time is to determine if any single or group of county employees released information in violation of the relevant sections of the Welfare and Institutions Act. That act speaks to the confidentiality and potential liability placed upon the county should that information be released by its employees.”

Jim Ewert, legal counsel for the California Newspaper Publishers Assn., said the vote authorizing the investigation appeared to have violated the Brown Act, the state’s open-meetings law, in at least two ways. If the county discussed or took action on a proposal without notifying the public at least of the general nature of the action, then it violated the Brown Act.

Also, the topic itself doesn’t qualify for a special, non-public meeting, Ewert said. The law sharply limits the nature of government deliberation and action that can occur outside the public purview. The basic rule is that all government actions and discussions are open to the public with a few exceptions, such as individual performance reviews, hiring and firing decisions.

A proposal to launch an investigation into the source of information used in newspaper stories would not qualify for closed-door treatment, Ewert said.

“It’s a clear violation,” he said. “I’m not aware of any exemption in the Brown Act that would permit them to discuss that in closed session. So, even if they had properly agenda-ized the vote, it would still be in violation of the Brown Act.”

The inquiry into The Times’ sources comes amid tightening secrecy surrounding information about children who die of abuse or neglect after coming to the attention of the county’s Department of Children and Family Services.

Department Director Trish Ploehn has grown reluctant to share documentation about the deaths even with the Board of Supervisors, preferring to brief them orally or not at all.

Additionally, a senior deputy county counsel declared the topic of child fatalities off-limits at a meeting earlier this month of the county’s Commission for Children and Families when commissioners asked for basic statistics regarding the deaths. County Counsel Andrea Ordin said later that her deputy erred in squelching the discussion and promised that the data would be released, but the department had yet to do so.

Ewert, the newspaper association lawyer, questioned the supervisors’ priorities in allocating county resources on an investigation into the release of information amid far more troubling reports about the operations and failures of the department. He said the investigation made it look as if the county was “circling the wagons,” rather than focusing on how it could better protect children.

Ewert also said that the investigation could have a chilling effect on the willingness of county employees to relay legitimate and public information to The Times.

Copyright 2010 Los Angeles Times

To comply with California’s open meetings law, the Brown Act, the Fillmore Unified School District board of trustees changed its policies on banning recording of its meetings and their requirement that speakers to the board provide an address before making comments. -db

m.vcstar.com
August 4, 2010
By Cheri Carlson

Fillmore Unified School District trustees have made some changes to comply with the state open-meetings law.

The district received a warning letter from the Ventura County District Attorney’s Office last month after the office received complaints regarding the school board’s compliance with the Brown Act.

The board, however, already had taken steps to make changes before receiving the letter, according to President Tony Prado. The district responded to the letter and provided the DA’s office with more information last week.

In May, trustees told an audience member to stop recording a public board meeting. State law, however, allows anyone to record a public meeting unless doing so creates a persistent disruption, according to the letter from Special Assistant District Attorney Michael Schwartz.

The board also has required people to provide an address before making public comments at meetings. Nothing in the state law specifically deals with requiring addresses, Schwartz wrote. But because the Brown Act and board bylaws do not contain such a requirement, requiring it at board meetings “appears to be an unauthorized limitation on the opportunity for public comment,” he wrote.

After the May meeting, the district sought advice from its general counsel on recording meetings and has not restricted recordings since, according to a letter from the counsel to Schwartz.

On advice from counsel, the Fillmore board also will no longer require address information from speakers, according to the letter.

Prado said issues related to public comments are not fully addressed in the training trustees receive on the Brown Act — something he thinks should be changed. He wants people to feel comfortable making comments to the board, he said. Such comments can promote dialogue and keep the board accountable, he said.

Copyright 2010 The E.W. Scripps Co.

A federal judge ruled that a group of Texas cities cannot join in the suit to overturn the state’s open meetings law because the cities have no guarantee of free speech. Seventeen public officials are challenging the constitutionality of the law that forbids a quorum deliberting behind closed doors. -db

Reporters Committee for Freedom of the Press
August 5, 2010
By Miranda Fleschert

A federal judge ruled last week that a group of Texas cities cannot take part in a legal effort to overturn the state’s open meetings law because cities have no guarantee of free speech and therefore cannot challenge the constitutionality of the law alongside 17 public officials.

The cities of Alpine, Pflugerville, Rockport and Wichita Falls cannot join the elected officials in the lawsuit against Texas Attorney General Greg Abbott, which claims that an open meetings provision barring officials from meeting in secret violates their rights to free speech, since the cities have no First Amendment rights against the state, U.S. District Judge Robert Junell ruled on July 28.

The public officials argue that Texas’ open meetings law, which attaches $500 fines and six-month jail sentences to a prohibition on a quorum of government officials deliberating behind closed doors, violates their free speech rights, though prosecutions under the law are rare.

In February, attorneys representing the state of Texas asked the court to drop the cities from the lawsuit, arguing that because municipalities are created by the state, they cannot sue their creator on constitutional grounds. The court agreed with the state’s argument, though it left open the possibility that cities might be able to sue the state under other circumstances.

Specifically, the judge disagreed that the U.S. Supreme Court’s recent decision in Citizens United, which granted free speech rights to a private corporation, applied in this case, saying that argument had “no merit” since cities are public, not private, entities.

“Although the freedom of speech is a right that is guaranteed to entities other than individual persons, Plaintiffs have not cited a single case – and the Court is aware of none – that holds the freedom of speech applies to the political subdivision of a state, or that a political subdivision can invoke the free speech rights of citizens against its own state,” Junell wrote.

The lawsuit mirrors a recent federal case that became moot after the Alpine city council members seeking to overturn the law no longer held office. Attorneys for the previous plaintiffs have taken on the new case free of charge.

The Reporters Committee for Freedom of the Press filed a brief with the Fifth Circuit that supported the constitutionality of the open meetings law during the first case. Prior to the case’s dismissal, Junell in 2006 upheld the constitutionality of the act.

Copyright 2010 The Reporters Committee for Freedom of the Press

The Air Pollution Control District Board established two committees to develop a plan for the Oceano Dunes State Vehicular Recreation Area but said according to the county counsel, the committee meetings would be closed to the public as they worked out how to reduce emissions contributing to pollution in the area. -db

New Times
July 28, 2010
By Matt Fountain

When it comes to the often contentious battle over off-roading at the Oceano Dunes, residents of the Nipomo Mesa and recreational riders rarely find common ground. On July 28, however, the two sides were able to agree on something: They want to be involved.

The Air Pollution Control District Board of Directors at its July 28 meeting unanimously passed a memorandum to establish two ad-hoc committees to structure a Particulate Matter Reduction Plan (PMRP) for the Oceano Dunes State Vehicular Recreation Area.

A February 2010 study by the APCD found particulate matter (PM) emissions to be significant contributors to above-average ambient PM levels in the area surrounding Oceano and the Nipomo Mesa.

The memorandum provides for the establishment of a so-called Technical Advisory Committee, which will be responsible for preparing the scope of the plan and will include two representatives from the county and state parks, as well as a yet-to-be-determined outside technical expert. A Management Oversight Committee also formed, responsible for reviewing and approving all work by the Technical Advisory Committee for submittal to the district.

The problem: The committees, as drafted in the staff report, would be closed to the public and, according to county counsel, exempt from the Brown Act. That advice didn’t sit well with those in attendance.

“I believe the APCD is creating these committees in violation of the Brown Act, discussing the issue without the scrutiny of the public,” said SLO resident and OHV advocate Kevin Rice. “The public deserves access to make sure good science pervades at these committees.”

“I absolutely think they’re violating the Brown Act and not giving the citizens the right to participate in the process,” Lucia Casalinuovo, an Oceano resident for 20 years, told New Times. “If they discuss this in closed sessions and secretive meetings, there’s no representation by those affected by the health problems associated with [particulate matter]. When is the public going to be involved in this process?”

Air Pollution Control Officer and principle district administrator Larry Allen answered that he wasn’t opposed to allowing the public to attend the meetings, but he wasn’t sure public input on the technical meetings of the Technical Advisory Committee would be appropriate.

In the end, the district directed staff to make the Management Oversight Committee open to the public, but many residents still questioned what will be considered behind the closed doors of the Technical Advisory Committee.

Supervisor Frank Mecham stated that the Air Pollution Control District was caught between residents demanding action as well as participation: “We don’t want to exclude the public, but the public is demanding we do something, and we want to expedite that process.”

Copyright 2010 New Times

The Orange Unified School District board of trustees has allegedly violated the Brown Act, California’s open meeting act in failing to observe the rules governing teleconferencing votes. According to the act, all votes during teleconference must be rollcall votes. -db

Greater Orange News Service
July 26, 2010

With Trustee Kim Nichols participating in the June 10, 2010 OUSD Board meeting by teleconference from Memphis Tennessee, the OUSD Board voted by illegal voice vote on several major items. The Brown Act, which allows teleconferencing also specifically denotes the rules under how that teleconferencing is to take place. One of the specific rules spelled out in Section 54952 (2) of the Brown Act is that all votes during teleconferencing be rollcall votes:

54953. (2) Teleconferencing, as authorized by this section, may be used
for all purposes in connection with any meeting within the subject
matter jurisdiction of the legislative body. All votes taken during
a teleconferenced meeting shall be by rollcall.

None of the votes taken during the teleconference meeting on June 10 were by rollcall which is a violation of the Brown Act, technically making those votes illegal. The Brown Act also defines in Section 54952 (4) what a teleconference meeting is;

(4) For the purposes of this section, “teleconference” means a
meeting of a legislative body, the members of which are in different
locations, connected by electronic means, through either audio or
video, or both.

By definition, the June 10 OUSD Board Meeting was a teleconference meeting with Trustee Kim Nichols participating by a conference call. In fact the telephonic conference device was set up at her position at the Board diaz. The re-broadcast of the Board meeting on the OUSD Cable Channel shows the device and has Nichols name under it on the screen when Nichols spoke by telephone at the meeting. Nine major votes were cast during the meeting by voice, all of which were illegal and could be technically null votes. Those votes included:

• Approving a tentative labor agreement for a reduction in work days with the Orange Unified Educators Association.
• Approving a reduction in work days for leadership employees
• Approving an amendment to the Superintendent’s Contract for a reduction in work days and pay
• Approved a new school calendar with five fewer days
• Approving a Budget Resolution
• All Consent Agenda Items

In the past the OUSD Board has had problems with the Brown Act. Litigation has broken both ways, for and against OUSD. In 2003, as a result of alleged Brown Violation case from 2001, OUSD was forced for two years to record all closed session meetings in case a judge had to review them for Brown Act violations. In another noteworthy case from 2006, Californians Aware, a Brown Act advocacy group, teamed with former Trustee Steve Rocco in accusing OUSD of Brown Act violations in a celebrated case that led to the Censure of Rocco by fellow OUSD Board members. In the end, OUSD won that case and later took legal actions to recover attorney costs from Rocco.

The next OUSD Board Meeting on July 29, will also be a teleconference meeting with Trustee Melissa Smith attending from Lake Forrest, Illinois.

Copyright 2010 Orange Communication System

The Record
June 29, 2010
By Jennifer Torres

STOCKTON — Three members of the San Joaquin Delta College Board of Trustees should be censured for violating the state’s open-meetings law, the county grand jury recommended in a report released Monday.

The trustees — identified in the report only as Trustees A, B and C — knowingly participated in a serial meeting, discussing public business outside of public view, in violation of the Ralph M. Brown Act, the report concludes. Two of the trustees also disclosed confidential information even after fellow board members tried to prevent them from doing so.

In October, Trustee Jennet Stebbins told The Record that several months earlier, she met Trustee Mary Ann Cox — at Cox’s request — at a doughnut shop, where Cox asked for Stebbins’ vote in a bid to oust Delta President Raul Rodriguez. According to Stebbins’ account, Cox told her she already had discussed the matter with trustees Taj Khan and Ted Simas.

Simas, Khan and Cox at the time denied participating in an illegal, secret meeting, and on Monday, Cox said that, based on her training, she does not believe a Brown Act violation occurred.

She said the grand jury report leaves questions. “I really don’t know what all this means yet,” she said. “We don’t know who A, B and C are. … I’m looking forward to finding out.”

Board President Teresa Brown said the board asked the grand jury to identify the members it accused of misconduct. She was disappointed they remained unnamed.

“Until they name them, it casts the same specter over the whole board,” she said. “It makes no sense to me.”
And, she said, without the names, there is no legal foundation for disciplinary action.

“There is no way we can censure them,” Brown said. “There are no Trustees A, B, C. We cannot censure people who are not named.”

Copyright © 2010 San Joaquin Media Group

A college of the Redwoods trustee has alleged that the Academic Senate violated California’s open meeting law, the Brown Act, by holding secret meetings. The salvo is part of an ongoing dispute between the professors and the trustees over budget cuts. -db

The North Coast Journal
June 24, 2010
By Ryan Burns

A Santa Clara County grand jury reported that the Sunnyvale City Council violated the Brown Act, California’s open government law by appointing an interim council member in 2009 without providing adequate public notice. -db

San Jose Mercury News
June 22, 2010
By John dugan

The Fontana City Council is faced with the problem of enforcing the city’s law against citizens’ interrupting a meeting while upholding free speech rights and the Brown Act, California’s open meetings law. -db