Two cheers for Los Angeles County District Attorney Steve Cooley for his November 5 report chastising the Board of Supervisors for violating state open-meeting laws.
Why only two? Because all he did was scold. He let them get away with it. He did nothing to stop them from doing it again. He won’t let us hear what they said behind closed doors.
The board violated the Ralph M. Brown Act on September 7 and September 13 by meeting in closed session, ostensibly to talk with lawyers about lawsuits, and instead reached an agreement to close the trauma unit of Martin Luther King–Drew Medical Center in Willowbrook. The law allows elected officials to talk with lawyers about lawsuits behind closed doors, but it does not permit them to make policy decisions, like closing part of a county medical center, out of public view.
There has been widespread outrage over the decision to close the MLK trauma unit. As a policy matter, it might in fact be a wise idea. But by doing it the way they did, the supervisors shot themselves in their collective foot. Cooley, instead of sympathizing, should have taken dead aim at their other foot. Instead, he took a ruler to their wrist.
It’s great Cooley agreed to look into the matter at all. Before he took office, nearly five years ago, prosecutors enforced the Brown Act against elected officials approximately — never. But Cooley took off after the L.A. school board over a closed session on how to unload the Belmont Learning Center, and he nabbed the Whittier school board on a similar matter. He also caught a member of the North Valley Area Planning Commission, an official city of Los Angeles land-use board, when he tried to squeeze in discussion of a controversial project that was not on the agenda. All of the offending decisions were reversed and had to be done over.
But Cooley had a previous chance to cite the supervisors for a Brown Act violation, and he let it slide. That was the incident in which then–County Counsel Lloyd Pellman had the supervisors meet in executive session on the theory that he was about to advise them on how to provoke a union into suing them. The whole idea of making a closed session fair game by doing something controversial or illegal makes a mockery of the Brown Act. It was especially cynical, since it was part of Pellman’s ruse to kill a ballot measure by deliberately failing to perform his job. It was also a sign of the supervisors’ arrogance, and of their contempt for their constituents and the law that governs them.
But, Cooley said at the time, no problem. Fortunately, a court disagreed and compelled the board to pay $116,000 in legal fees to the Los Angeles Times, which had sued. Taxpayers ended up paying another $238,000 to the board’s private attorneys who fought the case and later offered Brown Act advice. An expensive lesson, and they didn’t learn from it.
Cooley happened to clear the board at the same time he was asking the supervisors for more money for his department. It didn’t look good.
Brown Act violations are so common that it is easy for prosecutors, and the public, to miss them at first. It took a while, in fact, before anyone started wondering about the Brown Act after the supervisors walked out of a closed session in September and called a news conference announcing that the MLK trauma unit would close.
In response to complaints, Cooley’s lawyers and investigators took the opportunity to listen to the whole closed session, since the board began voluntarily taping itself behind closed doors after the Pellman incident.
Deputy District Attorney Jennifer Snyder of Cooley’s Public Integrity Division concluded that the board was within its rights to meet in closed session to discuss litigation, but that the conversation “exceeded the permissible parameters of the applicable privilege.” In other words, they wandered, and they should have known — and the county lawyer they had with them should have known — that they had begun talking about matters the public had a right to hear.
Will things change? Don’t hold your breath. The board’s top lawyer at the time of the MLK closed session was interim County Counsel Raymond Fortner Jr., who was running the show since Pellman’s retirement earlier this year. Having the Brown Act blown on your watch is not necessarily a feather in your cap. But it didn’t stop the Board of Supervisors on Tuesday from making Fortner the semi-permanent county counsel. Fortner is to retire in 2006.
What’s the remedy? Snyder said it would be rescission. In other words, revoke the action, forget the conversation, and do it over in public. But there’s no point, she said, since they didn’t mean to block public discussion, and since they had their public discussion afterward. And there’s no point trying to get a judge to pronounce that they did wrong, since the board has “previously demonstrated responsiveness to issues of compliance with the Brown Act.” It’s hard to see what the prosecutor meant by that, since the last time out, the board made a point of appealing the judge’s finding that it had violated the law.
Snyder also noted that the board is now voluntarily tape-recording its closed session.
But that’s the problem. It’s voluntary. They can stop whenever they want. It’s high time a court ordered the board to tape its closed sessions and acknowledge its sloppiness in following the law. A public apology is in order.
The Brown Act gives Cooley the right to charge the supervisors with misdemeanors. Not that the five of them belong behind bars for breaking the Brown Act. But Cooley needn’t be such a pushover.
“We are unable to provide many of the factual bases for the conclusions . . . ,” Snyder wrote, “since, as a condition of the Office of County Counsel providing us with the closed session minutes, access to recordings of the closed session meetings, and other documents pertaining to the subject matter, we agreed to maintain their confidentiality, not disclose them to any person or entity and to limit use of those materials to our review of the validity of the allegations in this matter only.”
In other words, even though we’re the D.A.’s Office, we agree that you’re letting us investigate you only because you want to, and we won’t talk about what you don’t want us to talk about.
Cooley’s office said flat out that some of what the board said behind closed doors was actually something that should have been heard in public. There are tapes. So let’s hear them. Let’s hear how it is that five supervisors and their lawyer veered off into a discussion that “exceeded permissible parameters.” The supes should know that anything that should be public will be public. That will help jog their memories the next time they begin to chat in closed session about things the public has a right to hear.
As it is now, because Cooley’s office agreed to play softball, they know only that anything they don’t want to be public won’t be public.