Earlier this year the board of the Sonoma Valley Hospital District reportedly managed to avoid scrutiny by the DA’s office by holding a public meeting to discuss what to do with a few acres of land it owns. Allegedly, it had previously held such a discussion in a secret Closed Session and allegedly – or so it was alleged — reached a decision to sell the land.
That upset a board member who, sensing a possible Brown Act violation, asked the D.A. to investigate. The Brown Act allows Closed Sessions to privately discuss sensitive real estate transactions that often can only be completed if confidential information of private parties is protected. In this case, however, the board member felt that the board had put the cart before the horse by effectively deciding to sell the land without a public discussion of other options, including keeping it for hospital uses.
Whereupon the board again discussed the subject in a subsequent public meeting, where it invited more Requests for Proposals on what else might be done with the land.
Whereupon the D.A.’s office decided to take no further action, noting that a public body must be given “an opportunity to cure any potential violation” of the Brown Act. The D.A. apparently regarded the subsequent meeting as such a cure, which is always a welcome word in the hospital business.
The “opportunity to cure” approach may account for the amazing fact that no public official has ever been convicted of violating the Brown Act. Here’s how that can happen:
To reach a questionable/cozy/embarrassing/confidential/sensitive decision on a matter of public business without the public learning of it, members of a public body can do it in a Closed-Door Session where – Who Knows? — all sorts of savory/unsavory persons or interests might/might not influence the ultimate outcome.
If no one finds out or objects, they might get away with it. But if someone blows the whistle, officials get to ‘cure the violation,’ a process known to pre-schoolers as a Do-Over.
This consists of holding a subsequent public meeting to discuss and decide the pubic business previously discussed and decided in private. With the Do Over meeting called to order and Allegiance to God and country pledged, officials then discuss the item previously decided in the Closed Session, which only a cynic would call ‘the Rehearsal.’
With no giggling allowed, officials carefully note the pro’s and con’s of the subject at hand, striking interested poses as they listen intently to members of the public voice their questions, concerns and opinions. After which they are free to vote to (a) change their original decision, or (b) do what they previously agreed to do in secret, perhaps with a few fresh flourishes of grammar, spelling or punctuation.
Voila! Violation cured.
But before leaping to condemn such flim-flammery, consider the immense public benefit and savings if this same approach could be applied to ‘cure’ other unlawful behavior. For example, why shouldn’t hard-working grifters, shoplifters, gangbangers or other bad hombres charged with bad behavior also be given a chance to ‘correct a violation?’ Call it the Olly Olly Oxen Free policy with rules already familiar to every kid who ever played that other game of Hide-and-Seek.
It could even do away with expensive courts and trials, emptying overcrowded prisons in no time, replacing the D.A. in charge of prosecutions with a D.O. in charge of Do-Overs. It could make America great again in no time.