By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
Lawyers for the Los Angeles County Board of Supervisors have come up with a new twist on what has become something of a specialty: taking simple violations of the state’s open-meetings law and making them worse.
The current chain of self-one-upmanship began in December 2001, when County Counsel Lloyd “Bill” Pellman suggested in a closed-door session that he could help kill an unfriendly ballot measure by simply failing to follow the law requiring him to turn over a ballot summary and title to the registrar of voters. Make the other guys sue us, he told the board. Violation of the Ralph M. Brown open-meetings law? Yes, according to a later ruling by Los Angeles Superior Court Judge Dzintra Janavs. The Brown Act, requiring public discussion of public business, does exempt attorney-client talk about pending or threatened litigation. But the judge appeared unimpressed by Pellman’s argument that he could clear the discussion for closed session by recommending an illegal action that would compel the ballot proponents to sue the county.
The day after Pellman made his suggestion, he had second thoughts and called three of the five board members to tell them to forget the idea. Brown Act violation? Maybe — the act prohibits “serial meetings,” in which board members discuss items on the phone, two at a time, and come to a majority agreement without ever actually convening. But District Attorney Steve Cooley investigated his fellow county lawyers and determined there was no problem.
Then, a few weeks later, in two more closed sessions, Pellman or his deputies sat in and advised the board as the supervisors discussed the permutations of their recent flirtations with the Brown Act. This was done under the guise of discussing employee performance evaluations and, again, pending or threatened litigation. Brown Act violations? Yes, Janavs ruled. The county blew it. County counsel blew it. Janavs rejected the request of the plaintiffs — the Los Angeles Times and California First Amendment Coalition president Richard McKee — for attorney fees, but they appealed, and the 2nd District Court of Appeal ruled October 29 that fees were warranted. It’s still up to Janavs to figure out how much.
That brings us to the latest case of the County Counsel’s Office digging itself, and the board and the county with it, into a deeper hole.
On November 25, after a four-and-a-half-hour open session at which the Board of Supervisors voted to tightly limit the public’s ability to speak, the board adjourned to closed session. Pellman wasn’t there, but the board took with it one of Pellman’s top lieutenants, seasoned county lawyer Donovan Main. The agenda reported, properly, that the board was going to discuss ongoing litigation, and everyone knew they were going to discuss whether to appeal the attorney-fee decision to the state Supreme Court. It was a controversial topic, and earlier public statements by Supervisors Zev Yaroslavsky and Gloria Molina suggested they were hostile to the idea of dragging the case out longer.
At the end of the session, the board’s executive officer, Violet Varona-Lukens, reported that the board had taken no action that needed to be reported. County Public Information Officer Judy Hammond relayed this data to reporters. But something was fishy.
In Yaroslavsky’s office, Joel Bellman saw that the following week’s board agenda had come out and listed neither a vote on the item nor a continuation of the discussion. Several staffers in Molina’s office noticed the same thing. They asked Hammond, and Varona-Lukens, what was up. Did the board take an action, or didn’t it?
It did. The board voted 3-2 to appeal the attorney-fee award. Varona-Lukens, in reporting that nothing reportable to the public happened, was merely following the instruction of Main, the deputy county counsel who advises the board on open-meeting requirements and is somewhat of an expert on the Brown Act. In fact, Varona-Lukens is a sort of unwitting hero to open-government advocates, because no one would ever have known about the violations that took place in the 2001 closed session if she had not accidentally sent incriminating documents to a Times reporter.
Main acknowledged that he made a mistake, and a corrected notice was sent out the next day. But the damage was done. The Brown Act requires that after the board has taken a vote in closed session, it must re-convene in public session, the same day, and report its action. One more Brown Act violation.
“Our advice was initially incorrect,” Main said. Whose advice? “Mine. County counsel.”
Main explained that he believed the vote was not reportable, because it had to do with an appeal. But the Brown Act explicitly covers decisions to appeal court rulings.
The embarrassing goof would be just that, a simple goof, were it not for the fact that it occurred on the same day the board acted on county-counsel advice, unseen by the public to this day, to impose a tough new public-speaking limit in the interest of preventing “disruption” at board meetings.
Generally, reports to the board are public, especially when they come in response to a supervisor’s public request for information. Molina, earlier in the month, asked Pellman for just such a report, but instead of delivering it publicly and posting it on his Web site, as required by board rules for all county departments, he delivered it only to board members. Rumor has it that it is a straightforward discussion of the board’s options. But it is only a rumor. The public has not seen it.