Rewrite the Brown Act!

Have we told you how much the Merry-Go-Round dislikes the Brown Act?

No?  Well, hang on.

The Brown Act is the statute that City Attorney Janet Kern cites whenever she wants to admonish members of Council not to talk to each other outside the confines of Council chambers.  Enacted in 1952 in response to a newspaper exposé of elected officials meeting secretly to make policy decisions, the statute requires that local governmental bodies (like city councils) conduct business only at “open and public” meetings.

We’ve never been totally convinced that the constraints imposed by the Brown Act are necessary to accomplish the Act’s stated purpose:  preserving the “sovereignty” of “the people” over the “agencies which serve them.”  As a former card-carrying member of the American Newspaper Guild, we’re all for open government.  But as a veteran observer of the political scene, we’ve often wondered why the game should be played differently in City Hall than it is on Capitol Hill.

Let’s put it this way:  Lyndon Johnson would find himself a fish out of water in Alameda (or in any other California city).  It was Johnson’s job, as Senate majority leader, to build a consensus in favor of legislation he (or his party) wanted to pass.  His genius lay in the ability to figure out what it would take to get a particular Senator to support the bill – and then to find a way to get him what he needed.  Frequently, Johnson would engage in horse-trading.  (“Vote for the civil rights bill and you’ll get a federal dam in Hells Canyon.”)  But sometimes, all he had to do was to agree to tweak the text or add an amendment.

Johnson did his work in the hallways and the cloakrooms – not on the Senate floor.  Indeed, the majority leader usually made sure that he had the votes for passage in his pocket before he even let the bill reach the floor.

It’s a mystery to us why techniques like those Johnson employed so masterfully to get laws passed by Congress should be banned at the local level, including Alameda.  True, sometimes there’s no need to build a consensus because one already exists.  For example, those politicians fortunate enough to get picked for the IAFF Local 689 slate understand, without being told, that they are expected to support organized labor’s political agenda.  During her tenure, Mayor Marie Gilmore didn’t have to convene any “secret meeting” to find out how her slate-mates were going to vote on items being pushed by the firefighters’ union.  She already knew.

But there are issues on which organized labor hasn’t taken a position.  (The number may be shrinking, since we’re now seeing union honchos like Marty Frates of the Teamsters show up to address Council about development projects).  In these cases, it still may be necessary to cobble together a majority.  But if, thanks to the Brown Act, that task can’t be tackled outside a noticed meeting with a published agenda, it has to be performed – if it all – at the Council meeting itself.

In theory, we suppose, the work of persuasion can be done from the dais:  A Council member might be able to sway two (or more) of her colleagues to her side through the cogency of her reasoning or the eloquence of her advocacy.  But, with all due respect, just as we have no Lyndon Johnsons sitting on Council, we have no Daniel Websters, either.  (Councilman Jim Oddie seems to aspire to that role, but he’s going to have to do more than sprinkle his speeches with quotations from FDR to deserve it).  We’ve only been watching Council meetings regularly for two years, but we can’t think of an instance in which a Council member declared she had changed – or even made up – her mind because of the compelling arguments made by one of her colleagues.

With Council members barred by the Brown Act from seeking to build a consensus beforehand and bereft of the oratorical skills necessary to rally support on the spot, Council meetings often turn into glorified drafting sessions.  Textual changes and amendments that a majority might have settled on before the session but for the Brown Act are made, discussed, and voted on at the Council meeting itself.  This procedure may satisfy the statutory mandate, but we wonder whether it serves the public interest.

For one thing, the process is terribly inefficient.  Take the Crab Cove initiative for example.  For whatever reason, the former Council decided it couldn’t adopt the citizens’ initiative re-zoning the parcel without also passing a “companion measure” allegedly intended to protect the City in the event of litigation.  The City Attorney drafted, and staff posted, a proposed ordinance.  But when the item was called at the Council meeting, Ms. Kern submitted revisions to the published text, and Councilman Tony Daysog offered an amendment, both of which Council approved in a post-midnight vote.  Then, when the ordinance came up for its second reading at the next meeting, Council voted to delete both the revisions made by Ms. Kern and the amendment sponsored by Councilman Daysog. After four weeks, what ended up finally becoming law essentially was the ordinance in its original form.

The practice of revising a resolution or ordinance on the fly has another flaw.  The textual changes and amendments get offered during the “Council discussion” portion of the hearing on the item.  By then, the public comment period is closed.  Unless the Mayor reopens it – and we’ve never seen it done – there is no opportunity for anyone in the audience to weigh in on the proposed revisions.

Sometimes, those last-minute changes cry out for public scrutiny because they revamp the terms of the deal.  Take the Del Monte warehouse development for example.  Before the election, the Planning Board had reviewed and approved a project permitting 414 new housing units to be built on three parcels, one of which was partially owned by the City.  When the item got to Council on December 2, the public speakers spent more than two hours expressing their views of the project the Planning Board had signed off on.  Then, after public comment had been closed, Councilwoman Lena Tam orally proposed revising the previously approved agreements to reduce the maximum number of units “on the land owned by the developer” from 414 to 380.

What was Ms. Tam up to?  If you watch the video, you’ll see puzzled looks from some of her colleagues, especially Councilwoman Marilyn Ezzy Ashcraft.  It was left to Mayor Gilmore to explain that “Councilmember Tam wants to make sure that the project is viable in the event that the City property is not acquired.”  (Read:  In the event the “slow growth” crowd that just won the election won’t agree to turn it over).  Even then, Council batted around suggested language for another hour before finally voting – at around 1:30 a.m. – to adopt Ms. Tam’s proposal.  Once again, the Brown Act had been honored – but at what price in terms of coherence, and, dare we say it, “transparency”?

For these reasons, if the Merry-Go-Round was asked whether to keep the Brown Act in its present form, we’d give serious thought to rewriting the statute entirely.  If a Council member has an idea about a new ordinance or policy (or an objection to an existing one), let her talk informally to as many of her colleagues as she desires to gauge their reaction, and even to solicit their support.  If those discussions cause the proponent to modify her thinking so as to accommodate concerns raised by others, so much the better.  All we ask is that the public be informed of these discussions when the item hits the Council agenda.

These musings – or mutterings, if you prefer – were prompted by the release a few weeks ago of a report – entitled, in perfect bureaucratese, “Conversations For Workable Government” — by the Little Hoover Commission (Hon. Don Perata, member).   Having conducted a 10-month review of the Brown Act (and its analog applicable to state government), the Commission endorsed the “open and public meeting” principle.  But it found that language added to the Act in 2008 “has created a surprising consequence – less government transparency” and therefore recommended modest changes.

The language that drew the Commissioners’ attention was the the prohibition on so-called “serial communications.”  Prior to 2008, the Act prohibited a majority of a legislative body from using “direct communication, personal intermediaries, or technological devices” outside a public meeting to “develop a collective concurrence as to action to be taken.”   After an appellate court gave this provision what some legislators believed was too permissive a reading, the statute was amended to provide that a majority may not, outside of a meeting complying with the Act’s notice, agenda, and other requirements, “use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take any action on any item of business that is within the subject matter of jurisdiction of the legislative body.”

This amendment broadened the scope of prohibited conduct:   Not just attempts to “develop a collective concurrence,” but even mere discussions about policy, are banned.  The new prohibition reaches both “hub and spoke meetings,” where one Council member separately calls (or emails) two other members to discuss City business, and “daisy chain” meetings, where one Council member calls or emails another member to discuss City business and the second member then calls or emails a third member to discuss the same thing.

Take an example.  Suppose Mayor Spencer arranges to have coffee (at an undisclosed location, so as to stay away from recording devices secretly wielded by off-duty firefighters) with Vice Mayor Matarrese.  “Say, Frank,” she says, “I’ve been getting a lot of emails about rent increases.”  “Me, too,” the Vice Mayor replies.  “The Council ought to do something about it.”

Later that day, Ms. Spencer runs into Councilman Tony Daysog at the Haight Street farmers’ market.  She tells him about her conversation with Mr. Matarrese and asks about his own thoughts.

Throw the flag!  Brown Act violation!  In our hypothetical, the Mayor has not proposed any action to deal with the problem of rent increases, much less attempted to garner support for a specific solution.  But she has “discussed” an item “within the subject matter jurisdiction” of Council with two of her colleagues.

(Under a strict interpretation of the Brown Act – and you can be sure that Ms. Kern would give it one – the same result would follow if it was Mr. Matarrese who ran into Mr. Daysog at the farmers’ market and brought up the subject of rent increases.  Having talked to the Mayor about the issue, he can’t discuss it with Mr. Daysog because that would make three Council members on the “daisy chain”).

To us, this is nonsense.  Even if the ban on informal consensus-building made sense, we still would want our Council members to be free to talk to each other about complaints made by citizens.  We would want them to be able to bounce ideas off one another about ways to solve the problem.  And we wouldn’t care if these conversations took place outside Council chambers.  In fact, the proverbial “full and frank exchange of views” is more likely to occur at a coffee shop or a farmers’ market than on the dais.  To the extent the Brown Act stands in the way of communications among Council members about civic issues, it makes the eventual decision less informed and thoughtful, not more.

The Little Hoover Commission identified another deleterious effect of the ban on “serial communications”:

Constraints on internal discussions by appointees and elected officials have driven more decision-making downward to the staff level and out of sight of the public. Many participants in the Commission’s study process said staffers who are not accountable to the public in elections or through the appointments process are gathering more consensus and making decisions internally for leaders to ratify in public meetings.

Even “more troubling,” the Commission said, “lobbyists [and, presumably, the special-interest groups whom they represent] who understand the constraints faced by decision-makers can use conversations with individual office holders to subtly nudge them toward consensus for their own ends.”

When we read this section of the report, we couldn’t help but think of Alameda.  Based on our observations, staff-driven decision-making goes on all the time at City Hall.  Indeed, former City Manager John Russo was a master of the art.

Sometimes, we admit, Mr. Russo’s taking the initiative benefited Alamedans.  For example, it was the City Manager, not the Mayor or any other elected official, who spearheaded the effort that produced a zoning ordinance, an environmental impact report, and a master infrastructure plan for Alameda Point and led to the signing of a development agreement with Alameda Point Partners for Site A.  Without Mr. Russo, we’re convinced the politicians would still be holding town meetings.

Likewise, when Council took matters out of the City Manager’s hands, the result could be less than satisfactory.  For example, the former Council rejected Mr. Russo’s proposal to let staff investigate the facts about the local rental market, research rent stabilization laws adopted by other Bay Area cities, and then recommend what, if any, legislation would be desirable in Alameda.  Instead, it opted for a “community engagement” process, in which a “facilitator” would attempt to find areas in which all “stakeholders” agreed.  The current Council then directed the City Attorney to turn the resulting “discussion points” into an ordinance that did no more than codify the procedures already being employed by the Rent Review Advisory Committee.  Big deal.

But staff-driven decision-making also can result in ill-considered actions taken without the benefit of sufficient public scrutiny.  We give you the new five-year public safety union contracts.

The contracts approved a little more than two years ago, in December 2012, didn’t expire until June 2017, and the former Council never voted publicly to authorize Mr. Russo to begin negotiating new agreements with the unions.  Instead, in closed session, it directed him to “continue discussions” with the unions over establishing an “OPEB trust” to which both the City and the employees would contribute to pay for retiree health benefits.  (And we know this, we should point out, not because it was publicly disclosed at the time, but rather because the meeting was described in the staff report submitted when the proposed contracts came up for approval on April 29).

At some point, these discussions about OPEB morphed into negotiations for a new contract that would last until 2021.  But the new Council did not vote publicly to authorize Mr. Russo to expand the issues at the bargaining table beyond OPEB.  Nor did it vote publicly to direct him to offer a new five-year contract guaranteeing annual salary and benefit increases as an inducement to get the unions to agree to employee contributions toward the City’s annual OPEB costs.

Indeed, at the only closed session held with the new Council before April 7, when Mr. Russo publicly announced that he had cut a deal with the unions, the sole issue apparently still was OPEB.  According to the April 29 staff report, Mr. Russo briefed Council and “outline[d] potential deal points that would partially address the OPEB issue.”

Another closed session was held on April 7 before the regular meeting convened, but it isn’t clear what happened.  The April 29 staff report states that, “Council provided final direction to staff to return with a set of recommendations including a new or amended MOU, for their consideration in open session.”  Ms. Spencer remembered it differently.  According to the Mayor, a majority of Council members approved a “tentative agreement” in the closed session.  Not so, Mr. Matarrese responded: “It wasn’t a tentative agreement at that point,” but just the terms “to go to the table and negotiate.”  Interim City Manager Liz Warmerdam took a middle ground:  “You had a term sheet that outlined every piece that would be in redlined agreement.”

Whatever.  The inescapable conclusion is that the story of the new public safety union contracts fits the pattern described by the Little Hoover Commission:  an aggressive and self-confident City Manager and his staff “making decisions internally for leaders to ratify in public meetings.”  (We don’t know if the other phenomenon identified by the Commission – special interests meeting privately with Council members one-on-one to “subtly nudge” them into voting for the contracts – also occurred, but we would be surprised if it didn’t).

The Little Hoover Commission thought this situation was troublesome, and so do we.  And it’s not just that we believe the new public safety union contracts, which will cost the City between $6.25 million and $9.8 million during their five-year term in exchange for a $271,000 reduction over the same period in the City’s annual OPEB costs, were a bad deal for Alameda.  At the very least, those contracts were part of a complex arrangement that demanded painstaking analysis.  What they got from Council instead was perfunctory assent.

Of course, we can’t blame the Brown Act entirely for this flawed process, and we’re not sure that the amendments proposed by the Little Hoover Commission – essentially, removing the prohibition on informal “discussions” – would have produced a different result.  Nor do we entertain any hope that, even if the Legislature accepts the Commission’s recommendations, it will make any additional, more far-reaching changes to the Brown Act.  Instead, it probably will stick to the cardinal principle articulated by the California League of Cities: “there is more to be gained than lost by conducting public business in the open.”

Let’s just say that Robert Caro won’t be writing any books about how politics is practiced in Alameda any time soon.

Sources:

League of Cities pamphlets: League of Cities, Brown ActLeague of Cities, Brown Act (2013 supplement)

Little Hoover Commission report: Little Hoover Commission report

Robert A. Caro, Master of the Senate (2002)

April 29, 2015 staff report re new public safety union contracts: 2015-04-29 staff report re IAFF contracts

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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5 Responses to Rewrite the Brown Act!

  1. Ken Peterson says:

    Great discussion, Bob. Most of the ideas have also been on my mind.
    By preventing our elected officials from easily talking things over, we shut out their opportunity to become informed on the basic stuff of their business.
    I have been concerned about the OPEB contract and the employee contracts.
    I have been concerned about the failure of the Council to inform itself and allow the public to become adequately informed. The actions which prevented the independently elected City Financial Officers from providing advice were shocking.

  2. Paul Foreman says:

    I am the Vice-Chairperson of the City of Alameda Open Government Commission that is charged with monitoring the Brown Act and the City’s Sunshine Ordinance.
    The opinion expressed below is my own and not an expression of the Commission.

    I have been active in communicating with City Council members for the past year and a half and have felt very constrained in trying to buld a consensus because of the the inability of more than two members to discuss an issue. How the legislature can impose such a draconian limitation on local officials while exempting themslves from the same requirements defies any logical explanation. There should be no restriction on any number of council members meeting informally to discuss any matter or even to propose specific legislation and work out the languqge before it reaches the public meeting stage, so long as the the final vote is taken in public after the required prior notice of presentation and public input.

    The current system has Councilmembers acting as islands, rather than intelligent candidly interacting human beings. I fully agree with you that it leads to Council being dependent on staff who have no retriction whatsoever on their discourse with eachother. It also leads to interminably long council meetings where language is developed on the fly in the course of the meeting. The late night meetings are much more damaging to the notion of transparency than unlimited private discourse between council members.

  3. Steve Gerstle says:

    Regardless, those who are powerful will control the community while the rest of us are given the choice of either being obsequious or left to press our noses against the windows of City Hall.
    http://tinyurl.com/poorchoiceofwords

  4. Bill2 says:

    Anyone in Alameda can become one of the powerful. It takes time and it takes focus, but if you understand that power has many different levels, you can have an impact on our community. You do not have to be a leader to act like a leader. Power can come to you. Step up and step out and grab it.

  5. notmayberry says:

    Or, as we used to say, If you’re not part of the solution, you’re part of the problem

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