Is The Window On Open Government Closed? What The State's Suspension Of Portions Of The Brown Act Means To Your Agency.
This guest post was authored by Meredith Karasch
Buried within the State’s 2012-2013 budget, is a new provision that may have the effect of suspending portions of the Brown Act. In an effort to reduce expenditures, the budget suspends reimbursement to local agencies for costs of posting agendas. Under Government Code section 17581, the state may suspend mandates as part of its budget process. If a particular mandate is suspended, the local agency is not required to follow the statute (or portion thereof) which has been identified in the state’s budget act as being one for which reimbursement is not being provided for that fiscal year. This year’s budget has identified the “Open Meetings Act/Brown Act Reform” as one of the mandates it is suspending. Therefore, the new budget appears to suspend requirements that local agencies comply with the Brown Act.
However, your agency may not want to act too quickly in declaring open government a thing of the past. First, the California Constitution requires public access to governing board meetings and the Brown Act states that the posting and agenda requirements are necessary to implement this provision. The Brown Act itself declares “complete, faithful, and uninterrupted compliance with the Ralph M. Brown Act . . is a matter of overriding public importance. Unless specifically stated, no future Budget Act, or related budget enactments, shall, in any manner, be interpreted to suspend, eliminate, or otherwise modify the legal obligation and duty of local agencies to fully comply with [the Act] in a complete, faithful, and uninterrupted manner.”
Further, section 17851 only allows suspension of the portion of an act that requires reimbursement. Under the Brown Act, the only reimbursement is for the cost “to post a single agenda.” There are many provisions of the Act beyond the posting requirements. For example, it seems likely that the legislature did not intend to suspend any part of the Act involving having an agenda that identifies items for discussion or closed versus open session discussions. Even more important, AB 1464 likely does not suspend the provisions of the Brown Act that allow citizens to sue to enforce the provisions of the Brown Act. Thus, it is not at all clear that any provision has actually been suspended in any meaningful way.
On a practical level, agencies may also want to consider that the Brown Act was enacted in 1953 and is ingrained in local government culture. For this reason many agencies may have their own policies and ordinances that require open meetings and posting of an agenda. School and community college districts are also bound by the Education Code to follow the Brown Act in having open meetings and posting agendas. (Education Code §§ 35145, 72121) These sections also expressly allow citizen suits to enforce these provisions. Finally, local entities gain trust from the community when there is transparency in government. This is an important consideration especially given the minimal cost to the agency of complying with the posting requirements, much of which is accomplished on-line. Even if legal arguments do not persuade you, the political effects of failing to comply with the Brown Act may be enough to keep your agency complying with open meeting laws.