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There They Go Again

L.A. County supervisors began discussing closure of the trauma center at Martin Luther King Jr.–Drew Medical Center nearly a week before they made their decision public. The procedure they used — taking up the plan behind closed doors, then announcing it at a news conference as an accomplished fact — may have given some board members the extra dose of political courage they needed to take a desperately needed but highly controversial step.

It also certainly violated the spirit, and likely the letter, of their old nemesis — the Ralph M. Brown Act. The 51-year-old California open-meeting law requires public bodies to make their decisions in public and mandates that all discussions, including those to take place in closed session, be placed on the agenda for all to see.

Any violation of the law arguably was “cured” on Tuesday, when the board voted to move forward with the trauma-center closure. But the public is left with the sense that the supervisors have played fast and loose with their duty to give their constituents a meaningful role in their deliberations.

The discussion of the trauma closure first landed on the agenda of the September 7 board meeting, an unusual Tuesday-afternoon session that followed the Labor Day holiday. We know now, but did not know then, that King-Drew and its trauma unit were at the center of the agenda item listed only as “Conference with Legal Counsel — Anticipated Litigation” and “Significant exposure to litigation (one case).”

No action was taken at that meeting, and it’s not clear how extensive the discussion was. It was tabled until the following Monday.

There was no special agenda published for that Monday meeting. But the agenda for the next day’s regular meeting included a page inside with a Notice for Closed Session — for Monday. Again, there was no indication of the subject matter, other than “significant exposure to litigation.”

What exactly was the litigation? No one will say, officially. Deputy County Counsel Donovan Main said the matter was protected by the attorney-client privilege. It may be that the county knew that the medical center was about to lose its accreditation and that it planned to sue the accrediting body — the Joint Commission on Accreditation of Healthcare Organizations — to keep its status. Or maybe it was going to sue the federal government in case its funding was cut off. The Brown Act includes a litigation exception, to keep counties, cities and school districts from tipping their hand to their adversaries. But it’s more than a stretch to argue that the entire plan to close the trauma unit was part of an effort to decide whether to file a lawsuit.

Did the board actually vote on September 13 before calling a press conference to announce that it unanimously supported closing the trauma unit? Brown Act sticklers can argue that they did not, but simply heard a report from Dr. Thomas Garthwaite, the director of the county’s health department, and took his recommendations under advisement. Under this theory, the vote didn’t happen until Tuesday, September 21, after a long and confrontational public hearing.

But that’s just silly. Anyone who attended that first news conference, with five grim-faced supervisors staring into the cameras as Garthwaite announced that the trauma unit would be closed, knew they had made their decision. That makes the Tuesday hearing just a matter of going through the motions.

Still, the Tuesday meeting and formal vote can constitute a legal “cure” of any Brown Act violation. “You can’t have a situation,” explained Peter Scheer, executive director of the California First Amendment Coalition, “where it becomes legally impossible for them to take the action they wish to take.”

 

But even if the Tuesday hearing is a legal cure, the damage is done. The Brown Act forbids public officials from conducting their deliberations without public scrutiny, and in this case, the Board of Supervisors did just that. Sure, there is scrutiny now, much of it harsh. But it comes after the fact. The board got yelled at by the public Tuesday, but that’s different from being yelled at before they have made their decision.

Supporters of the board action argue that having the public discussion first, and allowing the kind of political grandstanding we have seen since Monday’s decision was announced, would have prevented the supervisors from doing what they had to do: finally acting to save King-Drew by exercising the political courage to cut the medical center’s array of services.

But the Brown Act was not meant to instill political courage by allowing decisions to be made behind closed doors. Each elected official has to bring to the table his or her own political courage — enough to be able to make the right move in full public view.


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