Our Own Secret Government

It turns out that the County Counsel’s Office did not post any reports of any kind on its Web site for nearly a year. Why? Pellman did not return a call for comment, but Hammond said she was told by the County Counsel’s Office that the person who used to be in charge of doing that in Pellman’s office retired. Pellman later told Hammond it wasn’t true. But still, postings have been sparse.

That latest report was floating around board offices for a couple of weeks when Pellman followed it up with a more formal memo, labeled confidential, and attached the first memo to it, grandfathering in its confidential status. Main said it was common, and proper, to label memos from the County Counsel’s Office to the board as confidential, since they are protected by the attorney-client privilege.

They may well be. The problem is that the county counsel is left to decide what is privileged and what is not, just as it is the county counsel who decides what is covered by the Brown Act and what is not. Public Records Act request for the county counsel’s report? It goes to county counsel, who determines whether he needs to comply. The board can waive the privilege, and I called several board offices to see if they might want to share the report. No luck. The board acts on the advice of county counsel.

Pellman, by the way, reported to the board, orally and in open session so that everyone could hear him, that the Brown Act had been amended to make clear that local government bodies need allow members of the public to address them on only a single item on any given agenda. He was wrong. It was not the Brown Act that was amended, but the board’s own rules, which have less legal clout than, and may be in conflict with, state law.

Karen Ocamb, who heads a group of reporters and First Amendment activists called the Sunshine Coalition, said the erroneous statement made it even more imperative for the public to learn what other advice about the Brown Act Pellman was giving.

“How do we know that everything else he’s telling them isn’t also wrong?” Ocamb asked. “What kind of training are they giving staff and commission members about the Brown Act? How is anyone to know if a violation has occurred if it is done in secret?”

Molina, especially, has railed at the County Counsel’s Office over the years for poor controls over contract spending, poor record keeping and poor advice on Brown Act matters. Yaroslavsky has led the charge on openness and public access. Mike Antonovich refused to vote in favor of the new restrictions on public speaking at board meetings. But the board is not a guiltless, unsuspecting tool of county counsel when it comes to matters concerning the county’s duties to the people it serves. Pellman and his staff of lawyers act at the board’s direction. And it is the board that amended its rules to limit public participation.

The amendments to the rules are troubling, but not just for the obvious reasons. One of the amendments actually lifted the rule that a member of the public can speak to the board on only one item on any given day’s agenda. So isn’t that a good thing? It is — except that the rule was never followed in the first place. Another amendment allows a person to speak on as many items as he or she wants — but only for a total of three minutes. It’s new, in the rulebook — but the board of supervisors enforced that rule for several months before actually adopting it. The message is that the rules don’t matter. Either the board’s rules or the Brown Act. And so far, there have been few people to tell the supervisors otherwise. Except for the people who sue them, and the judges who rule against them.