OPEN GOVERNMENT – GETTING DMUSD TO STEP UP TO THE PLATE

You may have noticed that DMUSD had a quickly scheduled board meeting last night to discuss violations of the Brown Act regarding open meetings. After they emerged from the closed session, they unanimously voted in the public session to make an important and unconditional commitment to the public, in writing, about keeping their future meetings open to the public.  

Play Outside Del Mar triggered that special meeting and this post explains how and why.

No man is above the law and no man is below it. Nor do we ask any man’s permission when we require him to obey it. –  Theodore Roosevelt


Brown Act – Open Government in California

I remember when I first read California’s Brown Act – sometimes known as the “open meetings law” – a pillar of California democracy. I was both in awe and humored. I thought: “I can’t believe something so citizen-oriented and inclusive and necessary to government accountability actually survived the state legislature!” 

Before the Brown Act passed in 1953, it was common for the public to live in the dark when it came to local government. While there were public meetings, where local government met and debated and voted in front of the citizenry, there was a widespread understanding that many public meetings were mere charades. Everyone knew the real discussions and compromises and votes had already happened behind the scenes, hidden from public scrutiny and participation. The “public meeting” was just an event to announce what the board had already privately agreed to do. 

The Brown Act ended that. In a sentence, it opened local government to inspection by the citizens who created it. Or you might say instead, it gave us the legal right to watch the sausage being made.

In section 1 of the Brown Act, the Legislature said:

In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments that they have created.”

The Brown Act is broad and deals with many things – notice of meetings, open meetings, open agendas, the right for the public to speak at meetings, access to meeting documents, and so on. I write today only about open meetings.

The general rule is that all board meetings of public institutions must be open to the public, for public inspection, comment, and criticism. 

Open board meetings are the norm even when the board calls in legal counsel to discuss possible legal exposure from future actions to be taken by the board. This part was counterintuitive to me when I first studied it – what about privacy and the attorney client privilege that seemed to be sacrosanct when lawyers represent private parties?

But as I learned more, reading the cases and the Attorney General comments, my respect for the Brown Act deepened. The Brown Act says (in substance) that the boards of the public institutions that we create and who use our money and who act on our behalf have to debate in front of us the legal risks and legal exposure from actions yet to be taken, with lawyers present if they need them. The legislature gave the public the right to see, examine, and criticize where the board is leading them. The public gets to see the risks the board is planning to take with our money – so the public can stand up and demand a change of course, if warranted.

This extraordinary principle of openly debating legal risk taken by the board in front of constituents, to my knowledge, has no parallel in private legal matters. It is limited to the public institutions – such as school boards – that we created to serve us.

The Brown Act principle of open meetings has very few exceptions. One applies where there’s been an actual, concrete threat of litigation against a public entity based on upon existing facts and circumstances that have already taken place.  In that case, the board cannot stop the liability from happening by changing course; it’s already happened. And the Legislature decided that the board ought, in that limited circumstance, to be able to hold its legal defense close to the vest, as its very real adversary would no doubt do the same. In that circumstance, the public can be excluded from a board meeting.

But the Legislature was worried about abuse from this exception, worried about the exception swallowing the rule. It was worried that boards might return to the past and automatically close their meetings by claiming fear of “threatened litigation” routinely, whether or not there had actually been a specific and real threat. 

And so it made public entities jump through some serious hoops to justify their closed sessions when they said they were based on “threatened litigation.” For instance, if a board claimed it had received a threat of litigation in writing, and wanted to have a closed session meeting to discuss it, they had to show the public the actual written threat when they announced the meeting agenda. As another example, if the board claimed someone threatened the institution verbally in private – they had to write a memo documenting exactly what the threat was and divulge that memo to the public when noticing the closed meeting – to allow the public to inspect whether the claim was true and whether a closed session meeting was in fact proper.


DMUSD’s December 10, 2019 closed session meeting

On December 10, DMUSD’s board held a three hour closed-to-the-public meeting to discuss “threatened litigation” regarding the Del Mar Heights’ school rebuild. DMUSD gave the legal minimum 24 hours of notice, and the posted agenda did not identify any particular threat or include any written threats or memos by the district offering a legal justification for excluding the public.  

The timing was critical. The $55M Heights’ project had come under increasingly severe public criticism on a number of fronts – taxpayer waste, excessive facilities, eliminating baseball, covering the fields with buildings, inconsistency with bond promises, etc. Recent public board meetings were filled beyond capacity – overflowing into the hallways outside the board’s meeting facilities – with a supermajority of the public comments critical of where the board was steering the ship. 

A week later on December 18, the board held their usual public monthly board meeting. Once again, the crowd overflowed the facility.

That December 18 meeting struck many of us as very different than the other meetings we had attended. It seemed board members could practically finish the sentences of their colleagues, no matter the topic. Public criticism was met with catchy rebuttals by trustees, often with quick down-the-line agreement from the other trustees. Different.

With this hindsight, many of us began to wonder about that closed session meeting a week earlier. Was it really about threatened litigation, or might it have been a dress rehearsal to prepare for yet another round of staunch public criticism on December 18.

I was curious and set a course to find out.


A hunt for the truth

I sent DMUSD a public records request, asking for documents to justify the closed session meeting. I wanted to know about the “threat of litigation.” Was it real, or just an effort to get behind closed doors?  

The first thing I learned in the DMUSD responses to my requests was that DMUSD relied on two exceptions to the rule requiring open meetings. First, they claimed they’d been threatened with litigation in the December 3 public meeting of the  Citizen’s Oversight Committee (a group responsible for overseeing bond expenditures). Second, they claimed someone had threatened them orally and privately. On the second threat, they claimed to have proof in a confidential memo that they refused to give me, claiming attorney client privilege.

Even though there were two instances they relied upon to exclude the public, they’d only identified one threatened litigation in their meeting notice. That told me they must have been pointing the finger twice at the same person.

I had attended the Citizen’s Oversight Committee meeting on December 3 – and knew for a fact that no threat had been made there. I had spoken at the meeting, along with three other citizens, and none of us had threatened anything. Conveniently, I had videotaped the entire meeting and had irrefutable proof right there in my hands that no threat of litigation had been made. Additionally, DMUSD had given me the draft minutes of that meeting, and while they took fairly detailed notes of what each speaker had said, the notes were utterly silent on any threat of litigation. Their first justification for excluding the public was demonstrably false.

The memo was the second justification for excluding the public. I now was more skeptical, did it even exist?

The Brown Act did the work for me. It says that if you are going to exclude the public based upon an alleged oral threat of litigation, you had to have it written down by someone in a memo that you then make available for public inspection before the closed meeting. That was genius by the Legislature – they knew exactly how to tackle the “It happened but I won’t show you the proof” dilemma. The answer was:  either give the public the memo so that they can see for themselves, or host an open public meeting.

In short, the district had failed to justify either of their two exceptions. The three hour meeting was beyond question illegal. The public had a right to be there. Conveniently, the meeting had not been recorded by DMUSD – a departure from public meetings. Now the question became, what to do about it. 

The remedy – what to do? 

The Brown Act has no formal police force. In its wisdom, the Legislature left the bulk of the job to us – regular citizens. On the plus side, they gave us the power and some potent tools to keep our public institutions honest and following the law. On the negative side, we had to do the legwork. Civic responsibility.

For a Brown Act violation like the one committed by DMUSD, the Act lays out a clear path. You must first notify the institution of the specific violation in writing – and give them 30 days to respond. They have a legal right to escape a court judgment of illegal behavior for the past infraction – but it comes at a price. Although they don’t have to admit guilt, they do have to agree not to do it again. And they have to promise that in writing and affirm the promise in a public board meeting.

That’s the main event that happened in last night’s DMUSD special board meeting. DMUSD voted to provide the unconditional promise.

You might reasonably ask – wait a minute, isn’t that one free legal violation without any accountability at all? That’s a fair question. The simple and short answer is that if it happens again, Brown Act generosity has run out. The 30 day right is stripped away and the violator doesn’t get to dodge and weave and offer excuses. The public just points to the letter and says, “you broke your promise.” And they can ask the judge to order compliance with the law and possibly force the district to record their future closed meetings so the judge can later see what really happened, if need be.

If you attended last nights meeting, you’d have heard no defense of the December 10 closed session. The only trustee who mentioned it at all was Gee Wah Mok, who griped this was “ironic” since the board had recently “received a letter from a lawyer” about the Heights’ project. That’s an interesting take, justifying a closed session meeting in December when you get an unrelated letter from some lawyer in February, a letter that we now know from DMUSD’s mouth was itself not a threat of litigation that could justify a closed session meeting, even today. It certainly cannot justify an unrelated closed session months earlier allegedly based on actions by other people.

I was aggressively criticized by the trustees last night, for asking them to step up and follow the law. My demand was called “frivolous” and a “waste of the children’s money” by Erica Halpern, President of the Board, who ironically will be the one to sign the unconditional commitment. I guess it’s a waste to ask the board to follow the law so the public can watchdog its servants, but another thing altogether to spend $3,000 on a staff lunch at Farmer & The Seahorse. Civic responsibility apparently comes with a beating.  

No matter. DMUSD made its unconditional commitment on public meetings. That matters to me, and it should matter to you, and those of you yet to come. They made another unconditional commitment on yet another Brown Act violation at the same time, on properly providing documents to the public before the meeting, when they are requested beforehand as was the case. That second Brown Act violation, however, is another story for another day.

John Gartman, Founder
Play Outside Del Mar

CLICK HERE to access all documents mentioned above in this post, including:

1. DMUSD unconditional commitment – the board unanimously approved this at the March 12 Special Meeting

2. My letter of February 15 – describing Brown Act violation on open meetings and offering the board the opportunity to make the unconditional commitment

3. My letter of March 3 – on a different Brown Act Violation by DMUSD, also agreed to by DMUSD in the March 12 unconditional commitment

4. DMUSD response to my public records request on the December 10 Special Meeting – this includes (as an attachment) the draft meeting minutes of the Citizen’s Oversight Committee Meeting of February 3

5. Board meeting notice for the December 10 Special Meeting

6. The Ralph M. Brown Act

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