By Miriam Raftery
December 4, 2010 (San Diego’s East County) – Californians Aware (CalAware), the nonprofit center for public forum rights, has advised state associations representing most local government agencies that their members may be subject to short notice lawsuits for common violations of California’s open meeting law, the Brown Act.
Several local boards are among those recently accused of Brown Act violations by CALAWARE or other watchdog groups, including Grossmont Healthcare District, Grossmont Union High School District, Helix Water District, and Lakeside Fire Protection District boards.
On Monday, CalAware sent a warning letter to six local government associations: the League of California Cities, the California State Association of Counties, the California School Boards Association, the California Special Districts Association, the Association of California Water Agencies and the Association of California Healthcare Districts.
In the letters, Richard McKee, Vice President for Open Government Compliance, and Terry Francke, General Counsel, called on the associations to caution their members statewide that they may face prompt litigation challenges for apparent violations of the Ralph M. Brown Act that frequently appear in connection with posted meeting agendas.
The warning puts pressure on already cash-strapped agencies to bone-up on Brown Act requirements in order to avoid tagging taxpayers with costs of defending lawsuits over violations committed by publicly elected or appointed officials.
Responding to numerous Brown Act violation complaints from citizens and journalists has strained CalAware's resources, the letter states: "While we view our mission as primarily educational, the time spent correcting these violations has taxed our resources and often comes after the public has been shut out of the decision-making. There is no doubt that each of these should have been entirely avoided by the local agency’s use of knowledgeable and alert legal counsel to both counsel client bodies and train the appropriate staff. Thus, this communication is to inform you of these issues before our organization begins a more aggressive stance in both publicizing and litigating these common violations.”
Over the past several years, Californians Aware has identified four clusters of Brown Act issues that arise repeatedly.The four categories in which failure to comply will likely to result in prompt attention are:
• Litigation: Failure to disclose to the public, prior to a closed session on “potential litigation,” what are the legally required “existing facts and circumstances” that have created the litigation threat.
• Compensation: Using closed sessions to take final action on raises and contract improvements for key executives, and even to negotiate directly with them for increased pay or benefits behind closed doors.
• Property Negotiations: Failing to provide adequate location information concerning real property under negotiation for lease or purchase, as reported to the body in closed session, and within the session, discussing matters going beyond the “price and/or terms of payment” scope permitted by the Brown Act.
• Surprise Action: Voting to address items that are not on the agenda at regular meetings, as a matter of convenience rather than dictated by necessity responding to unforseen circumstances.
Richard McKee, Vice President for Open Government Compliance, and Terry Francke, general counsel for CalAware in Carmichael, California encourage journalists and watchdogs to notify them of such instances as they surface in local government meetings or agendas.
For more information on CalAware, visit www.calaware.org.