Morro Bay law presentation, 1994
(This was prepared for the 1994 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor of communications at California State University, Fullerton).
The length of the Ralph M. Brown Act, California's open meeting law for local government agencies, was nearly doubled by three bills signed into law by Gov. Pete Wilson last October. The bills are Senate Bill 36 (authored by Sen. Quentin Kopp, I-San Francisco), Senate Bill 1140 (by Sen. Charles Calderon, D-Whittier) and Assembly Bill 1426 (by Assemblymember John Burton, D-San Francisco). All three go into effect April 1, 1994.
Altogether, the three bills added approximately 5,000 words to the Brown Act, making it nearly 11,000 words long--about ten times as long as it was when Gov. Earl Warren signed it into law on July 2, 1953. Even the act's name has grown since 1953: it was just "the Brown Act" until 1961, when the legislature renamed it the Ralph M. Brown Act to honor its primary author, an assemblyman from the San Joaquin Valley. Press accounts at the time suggested that many legislators voted for the name change because they were tired of then-Gov. Edmund G. "Pat" Brown getting undeserved credit for the Brown Act!
The 1993 legislation does not change the basic provisions of the Brown Act: it still applies to all elected and appointed legislative bodies of local government agencies and most of their advisory bodies. It still requires their meetings to be open, with a few narrowly defined exceptions. The act still requires the posting of an agenda 72 hours before each regular meeting and strictly limits the circumstances in which non-agenda items may be acted upon. And, unfortunately, the Brown Act still lacks strong enforcement provisions.
Also unaffected by the 1993 legislation were the official Attorney General's Opinions declaring that community college academic senates and student government bodies, including their advisory boards, are subject to the Brown Act. (See 66 Ops.Cal.Atty.Gen. 252, 1983; and 75 Ops.Cal.Atty.Gen. 143, 1992).
Beyond the basic provisions, however, much of the Brown Act has been rewritten. Some of the changes were intended to close loopholes created by 40 years of court decisions interpreting the law. Other new provisions were added based on recommendations by working journalists and others who have practical experience using the law to combat official secrecy. The revisions were largely the work of the California First Amendment Coalition and its political allies. However, to get the amendments through the legislature and signed by the governor, the bills' backers had to make a number of compromises during lengthy negotiations with local government interests.
Briefly, these are some of the major changes contained in the 5,000 words that have been added to the Brown Act:
*The definitions of a "meeting" and a "legislative body" were both revised and expanded to make the act cover more meetings and more bodies. However, the "less-than-a-quorum" exception was retained, allowing small groups from a body to meet in secret under certain circumstances. An exception to this exception exists: standing committees of less than a quorum of a body must meet openly. This appears to offset a California Supreme Court decision that was announced just two months ago, Freedom Newspapers v. Orange County Employees Retirement System Board of Directors. Also, telephone trees and other "technological devices" used by members of a body to reach a consensus constitute a "meeting" and are supposed to be open. A quorum of a body may attend a conference or a "purely social or ceremonial occasion" without the event being a "meeting."
*Meetings are not supposed to occur in places where the public would have to pay to get in. Nor are they to occur in places inaccessible to persons with disabilities.
*Filming, videotaping and broadcasting of meetings is permitted unless it is unduly disruptive.
*Most meetings must be held within the boundaries of the government agency, although there are several exceptions.
*The Brown Act now applies to most private corporations created by local government agencies.
*There are now elaborate and very specific requirements for reporting what is to be discussed or acted upon at closed meetings. (Check out Section 54954.5).
*The agenda must now include a brief description of each item of business (i.e., about 20 words).
*Materials that are given to members of a legislative body by anyone during a meeting must be available for public inspection. This appears to narrow the scope of a 1993 California Supreme Court decision, Roberts v. City of Palmdale, which seemingly gave local officials a broad privilege to keep written communications confidential.
*The Brown Act's rarely used criminal provision was revised slightly, but a violation is a misdemeanor only on a showing of specific intent to violate the public's right to know, and it still applies only to illegal secret meetings where action is taken. Some early press accounts incorrectly reported this provision of the amended Brown Act.
*District attorneys are now expressly authorized to bring civil actions as well as criminal actions against legislative bodies that violate the Brown Act. Previously, this provision said any person could bring such a civil lawsuit, without specifically mentioning district attorneys.
*The use of secret ballots by local government legislative bodies is now prohibited. All voting results must be made public, even when the vote was conducted during a closed meeting.
*The "null and void" provision, which allows any person to sue to have actions taken at illegal secret meetings ruled null and void by a court, remains very weak. It still requires nothing more than a vote at an open meeting to ratify any action taken illegally in secret. Once ratified, the action cannot be nullified by a court.
*The Brown Act now forbids legislative bodies to muzzle their own members by forbidding them to publicly criticize the agency.
*The terms of out-of-court settlements of lawsuits are now required to be made public.
*Most discussions of budgets and related financial matters in closed sessions are now expressly prohibited.
*There are many, many other changes in the Brown Act that nobody understands
yet! It might be more correct to call these amendments The City Attorneys'
and County Counsels' Full Employment Act of 1993.