It’s not like the lawyers at the Los Angeles County Counsel’s Office don’t know about or understand the Ralph M. Brown Act, which the Board of Supervisors appears to have violated when it met in closed session to discuss the trauma unit at Martin Luther King–Drew Medical Center.
It’s clear they understand it, because on September 23, they gave their annual briefing on the open-meetings law to county employees and appointees to county commissions. Principal Deputy County Counsel Elizabeth Cortez went over all the main points, then took questions from participants. The last question, from some guy in the back, had to do with what a public body could discuss behind closed doors under the Brown Act’s so-called anticipated-litigation exception.
“When no lawsuit has been filed or expressly threatened,” Cortez was asked, “to what degree must the body limit their discussion to litigation strategy? Can they have a broader policy discussion?”
Her answer: “No. Those are policy considerations that would have to be discussed openly.”
Yes, that’s what I thought. But I raised my hand and asked the question — I was that guy in the back — just to be sure. Because the law applies equally to county commissions and the Board of Supervisors, and it sure seems to me like the board violated the law when it met behind closed doors under the litigation exception and emerged with a plan to close the King-Drew trauma unit.
Since the board has had a checkered history (to be polite) with the Brown Act, the supervisors tried to reform themselves by adopting a policy more than a year ago to tape-record all closed sessions. The county bought special equipment for the job, and its executive officer, Violet Varona-Lukens, confirmed that each closed session is indeed taped. So it follows that in order to prove the supervisors didn’t mess up this time, they would turn over the tapes of the September 7 and September 13 closed sessions quickly and cheerfully.
The Weekly is seeking the tapes under the Public Records Act. The Los Angeles Times has demanded them under the Brown Act itself. District Attorney Steve Cooley has opened an inquiry, to determine whether a full-scale investigation is warranted. Spokeswoman Jane Robison said subpoenas for closed-session tapes have never been necessary. “Normally, we just ask for them,” Robison said.
The board, you may recall, went into closed session after asserting in essence that it needed to have private talks with its lawyers because the supervisors believed the county was about to be sued. Then, at a hastily called news conference, with the five supervisors present, the county’s health director said the King-Drew trauma unit would close.
“The County has taken the important step of phasing out King-Drew’s trauma designation,” the health department reported in a news release put out later that afternoon. There was no suggestion at that point that a decision was pending. Yes, there would be a vote a week later to formalize the action. But the decision was made.
County officials have tried to backtrack in the face of the public outrage that greeted their move. How, critics demanded, could the board make such a decision behind closed doors without notice that the matter was even up for consideration? A story in the Daily Breeze first pointed out the Brown Act problem.
Then, on September 23, as stories in the L.A. Weekly and the L.A. Times raised the issue, as Cooley said he would open an inquiry, and as county appointees were briefed on the Brown Act, the health department issued a revised version of its news release from 10 days earlier.
It was exactly the same, except for one key sentence. The news release said, “The Department has taken an important step of recommending phasing out King-Drew’s trauma designation.”
It’s the department now, and not the county. And only a recommended phase-out.
So, did the board at some point “undecide” to phase out the trauma unit? Or is it instead that while the supervisors chatted amiably about taking up the issue at some future point, they didn’t really discuss the substance? You can imagine the conversation.
Supervisor A: “Hey, I know how we can avoid a costly lawsuit! Close the King-Drew trauma unit!”
Supervisor B: “Cool! But wait. Can we even talk about that in closed session under the Brown Act?”
Supervisor A: “Gosh, that’s a good point, B. My bad! Don’t tell me yet what you think about the idea, everyone. Let’s just agree to go outside and tell the public that we’re going to talk about this with them, openly, one day real soon. That way, everyone who is interested gets to participate!”
Supervisor C: “Wait, you two. What if the idea is unpopular? People could be mad at us! Let’s just agree here and now to do it, and present it to the public as an accomplished fact.”
Supervisor B: “C! I’m surprised at you! We serve the public. That means having our discussions about important things in public. And if people get mad at us, well, gosh darn it, that’s their right. Don’t forget, we work for them!”
Supervisor C: “Gee, B, you’re right. I’m awfully glad you set me straight. Let’s go tell them!”
In other words, perhaps the supervisors did not actually discuss Dr. Thomas Garthwaite’s now-public report advising the closure of the trauma unit, and perhaps they didn’t actually vote to adopt it, before they called a news conference.
But Susan Seager, the attorney for the Times who wrote the Brown Act demand for the tapes, isn’t buying it.
“They took a vote,” Seager said. “You can call it anything you want to. But they clearly reached a consensus.”
Missing from the imagined dialogue, of course, is the county counsel, who would be the person advising the board that its discussion in closed session is or is not legal. It’s a conversation that would be interesting to hear. Because while the Brown Act does make an exception for anticipated litigation, it doesn’t let the board get by without revealing who it thinks is about to sue, and over what — unless revealing that information would somehow give the adversary some valuable information that would help its case against the county.
That’s clearly not the case here, because the key information — we’re going to close the trauma center — was immediately made public. Only the deliberation — the decision-making process, the very heart of open and democratic government — was kept from the public.
The board ought to know better, since the court ordered it to pay $116,000 of your money for its last major Brown Act breach. But perhaps the real fault lies with the lawyers, whose job it is to keep the supervisors on the straight and narrow, whether they want to be kept there or not.
But for the last six months there has been no county counsel, as the board dickers over whom to hire for the job. The two top people in the office, Raymond Fortner and Donovan Main, want the gig — and they are two of the people who are advising the board on the Brown Act. So you can imagine another conversation, with the supervisors asking whether they can adjourn to closed session and the lawyer answering:
“Well, do you want to be allowed to adjourn into closed session? If I get the job, then, sure, you can adjourn into closed session.”
I hope that’s not the case. But we’ll know, as soon as we get the tapes.