Morro Bay law presentation, 1992
(This was prepared for the 1992 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor of communications at California State University, Fullerton).
With the backing of major news media organizations, State Sen. Quentin Kopp (I-San Francisco) has introduced a bill that would make sweeping revisions in the Ralph M. Brown Act, California's local government open meeting law.
The bill, designated as SB 1538, would close loopholes and strengthen the law by making about 25 major changes. Enacted in 1953, the Brown Act has been amended many times over the last 38 years--but many of the issues addressed in Kopp's bill have been ignored in previous revisions. SB 1538 was drafted primarily by the California First Amendment Coalition; it is supported by the California Newspaper Publishers Association and the Society of Professional Journalists, among others.
However, the bill as written does not address one of the major concerns of community college journalism faculty: the fact that community college student governments are no longer specifically covered by any open meeting law.
From 1974 to 1984, the Bagley-Keene Act (the open meeting law governing state agencies) required both community college and California State University student governments to hold open meetings. However, SB 2286, authored by State Sen. John Seymour, repealed that provision of the Bagley-Keene Act in 1984. SB 2286 created a new open meeting law for Cal State student governments (in Education Code sections 89920-89928). No similar provision was enacted for community colleges, leaving their student governments free of any specific statutory requirement to hold open meetings.
(However, the Brown Act does require multi-member boards and committees that act as advisory bodies to governing boards to hold open meetings if they were created by an official act of the governing board. It could be argued that most student governments must hold open meetings under that provision of the Brown Act. In fact, a California Attorney General's opinion--which carries considerable legal weight--declared that faculty senates at community colleges must hold open meetings for this reason. It might be possible to obtain a similar Attorney General's opinion applying the Brown Act to student governments.)
SB 1538 would alter the Brown Act in a number of important ways. These are a few of the bill's major provisions:
*It would make it much easier to prosecute government officials for violating the Brown Act by eliminating the requirement that they be shown to have had knowledge that a secret meeting was illegal before they can be convicted of a misdemeanor.
*It would require most closed meetings to be tape recorded so courts and grand juries can determine whether a particular closed meeting was illegal (closed meetings are permitted for discussions of personnel matters and pending litigation, among other things, but there is presently no effective way to prevent government officials from discussing other matters in secret after going into closed session to discuss one of those topics).
*It would extend the Brown Act to any non-government agency that receives monies from a government agency and has at least one of that agency's governing board members on its governing board.
*It would require nonprofit organizations to hold open meetings when discussing publicly financed programs. (This provision would overturn a recent court decision).
*It would narrow the exception allowing closed sessions to discuss pending litigation, limiting it to specific cases rather than broader discussions of legal issues.
*It would strengthen a provision requiring courts to award attorney's fees to those who win Brown Act lawsuits, thus overturning another court decision.
While SB 1538 has the support of media organizations, it is so sweeping--and
puts such effective teeth in the Brown Act--that it is likely to be opposed
by associations representing local governments.
A libel suit against the Los Angeles Community College District and East L.A. Campus News adviser Jean Stapleton has been settled for $30,000. Although the case established absolutely no legal precedent, it is a grim reminder of the potential legal problems any journalism adviser could face.
The lawsuit, Estrada v. LACCD, resulted from stories in the Campus News alleging that Carmen Estrada, a career counselor at East Los Angeles College, had claimed and been paid for a large number of questionable overtime hours. The paper said that these overtime claims had been approved by ELAC President Arthur Avila.
However, it turned out that the questionable overtime pay authorizations were disallowed by the LACCD headquarters staff and Estrada never actually received the money. She sued the district and adviser Stapleton for libel for the Campus News' false report that she was paid for the questionable overtime. (The Campus News later retracted that portion of the story, but Estrada claimed that the libel was repeated in another story that recapitulated the whole sequence of events).
What should particularly concern other publication advisers is that it happened in spite of the LACCD Board Policy on publications, which expressly forbids advisers to control the content of student publications. The intent of this policy is to insulate the district--and faculty advisers--from liability in the event of a lawsuit against a publication. The rationale: if neither the adviser nor the district can control the content, they cannot be held legally responsible for the content.
The district obtained--and paid for--independent legal counsel for Stapleton; both the district's lawyers and Stapleton's mounted an aggressive defense and sought to have the lawsuit dismissed on the ground that neither the district nor Stapleton had the right to prevent the alleged libel from occurring.
However, a Superior Court judge refused to dismiss the case, ruling that there were triable issues of fact. In particular, the judge relied on a sworn statement that Estrada obtained from a former ELAC student who claimed that Stapleton played a major role in determining the content of the Campus News. Although that individual left ELAC many years earlier--long before the current hands-off board policy went into effect--the judge ruled that Estrada had a right to try to prove (at a full trial) that Stapleton (and therefore the LACCD as Stapleton's employer) had contributed to the publication of a libel.
Had the case gone to trial, it seems unlikely that the Campus News stories would have even been ruled libelous: there was ample proof that Estrada submitted false overtime pay authorizations (thus making the basic thrust of the stories true). Moreover, even if the stories were ruled libelous, it is doubtful if Estrada could have shown that Stapleton was responsible for their publication.
Nevertheless, in August of 1991--just before the trial was to begin--the district agreed to pay Estrada $30,000 to settle the case. LACCD officials apparently felt that because the trial itself would have cost the district about $30,000 even if the district won, a settlement for that amount was the most prudent way out.
This lawsuit illustrates some of the realities of litigation as well as the limitations of a board policy that guarantees student press freedom. As every media organization from the New York Times to the Campus News has learned, a libel suit can be a painful (and expensive) matter even if the plaintiff doesn't have a winning case. Hard-hitting investigative journalism has its price, especially when some minor flaw in the reporting gives a plaintiff enough of a case to get past summary judgment.
For colleges with a board policy similar to the LACCD's, the message
here is that a court may look beyond the policy and inquire into the editorial
process that led to the publication of an allegedly libelous story. What
role the adviser really played may be a triable question of fact, even
if the board policy says the adviser isn't supposed to control the content.
These days the state and federal courts are handing down several hundred precedent-setting decisions on communications law every year. Probably the most noteworthy decisions of 1991 were these two:
MASSON V. NEW YORKER MAGAZINE - In a long-awaited ruling, the U.S. Supreme Court held that the actual malice libel rule applies to direct quotations: if a journalist knowingly or recklessly alters a quote in a way that is defamatory to the person quoted, that may constitute actual malice for libel purposes. However, the court also said that minor changes in the wording of a quotation that do not materially change its meaning are not libelous.
COHEN V. COWLES MEDIA - The U.S. Supreme Court ruled in this case that the First Amendment does not protect journalists from being sued if they promise confidentiality to a news source and then break that promise. The court said the states are free to allow such lawsuits based on various legal theories, including breach of contract and promissory estoppel.