Comments on Brown Act were cynical, unfair
The August 17, 2017, column by Bob Edwards, “Olly olly oxen free”, presents a cynical, and I believe misleading, view of the purpose and enforcement of the California open meeting law, or Brown Act, that requires response. Whatever Mr. Edwards may think about the substance of the issue of the sale of the hospital property, (and I probably agree with him, as I do on most issues), the problem or enemy is not the Brown Act.
The column starts with what he assumes t0 be the fact of a Brown Act violation by the Hospital Board (but note that a version of the word “allegedly” is used three different times in the second sentence alone); and follows with a further unsupported assumption that the D.A. didn’t prosecute anyone for this violation because of a weakness in the Brown Act. The last third of the column is devoted to mocking this assumed weakness by applying it to absurd situations.
What Mr. Edwards cynically calls the Do-Over meeting is in fact an open public meeting at which he and anyone else can speak to the substance of the issue as well as to any concerns that he has with the “questionable/cozy/embarrassing/ confidential/sensitive decision” that he allegedly thinks that the Board allegedly made earlier. And he is factually incorrect in stating that no public official has ever been convicted of violating the Brown Act. He is apparently referring to Section 54959 of the California Government Code, which was added to the Brown Act in 1994 to impose misdemeanor criminal penalties for willful violations in certain circumstances. Although convictions under this law are rare, the fact that there have to date been no appellate court cases challenging these convictions does not mean that they haven’t occurred or that public officials are not deterred from illegal conduct. I would refer Mr. Edwards to an excellent paper on the subject by Michael Colantuono, Esq. prepared for the California State Bar Public Law Section called “Enforcing the Brown Act”.
There are a lot of things wrong with how local government operates, and making sure that the public has sufficient information and opportunity to have a voice in public matters is an ongoing challenge. But to incorrectly and unfairly denigrate one of the legal protections that is working serves no one.
Sincerely
David Oster
19320 7th Street East
Sonoma, California 95476
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Dave –
In response to your claim that I ‘incorrectly and unfairly’ denigrated the Brown Act, I can only cry: “Fake News!!”
Seriously — Many thanks for reading and for your thoughtful comments. The more public awareness of the Brown Act, the less public officials will be tempted to hide things from the public. And they ARE tempted.
– Additional thanks for praising the piece as ‘cynical.’ The column is entitled “Snark Infested Waters,” so that’s what my editors expect!
– Also thanks for the citation to “Enforcing the Brown Act,” https://chwlaw.us/wp-content/uploads/Enforcing-the-Brown-Act-2015.pdf, which I read as pretty much affirming what I wrote, particularly about ‘curing’ things and ‘Do-Overs.’
For what its worth, First Amendment Coalition (FAC) lawyers agree that no one has ever been successfully prosecuted for violating the Brown Act. https://firstamendmentcoalition.org/open-meetings-3/facs-brown-act-primer/brown-act-primer-enforcement/ I couldn’t find a case, but then my rates are so high that I can’t afford too much of my own legal research!
As to ‘alleged’ & ‘allegedly,’ and the DA declining to prosecute, ‘I only know what I read in the papers.’ Specifically:
~ The Index Tribune of Jan 5, http://www.sonomanews.com/news/6511274-181/sonoma-valley-hospital-board-divided?artslide=0;
~The Sun on January 17 http://sonomasun.com/2017/01/17/boerum-drops-hospital-brown-act-complaint-after-district-attorney-decision/ and
~ The Index Tribune again, on Feb 2, http://www.sonomanews.com/news/6615415-181/the-sonoma-valley-hospital-board?artslide=0,
They reported on the alleging, the allegations, the allegor and the allegees.
Oh, and that Olly Olly Oxenfree provision? — That’s Government Code 54960.1 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=54960.1
Thanks again for your input, and it was a pleasure talking with you on Saturday at Suite D.