Our Own Secret Government
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 states 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 Pellmans 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. Its still up to Janavs to figure out how much.
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That brings us to the latest case of the County Counsels 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 publics ability to speak, the board adjourned to closed session. Pellman wasnt there, but the board took with it one of Pellmans 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 boards 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 Yaroslavskys office, Joel Bellman saw that the following weeks board agenda had come out and listed neither a vote on the item nor a continuation of the discussion. Several staffers in Molinas office noticed the same thing. They asked Hammond, and Varona-Lukens, what was up. Did the board take an action, or didnt 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 supervisors 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 boards options. But it is only a rumor. The public has not seen it.
It turns out that the County Counsels 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 Counsels Office that the person who used to be in charge of doing that in Pellmans office retired. Pellman later told Hammond it wasnt 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 Counsels 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 counsels 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 boards 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 hes telling them isnt 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 Counsels 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 countys duties to the people it serves. Pellman and his staff of lawyers act at the boards 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 days agenda. So isnt 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. Its 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 dont matter. Either the boards 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.