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Brown Act Inhibits Open Government

Uploaded: Sep 3, 2015
**Update: Better title: "Brown Act being Misused to Inhibit Open Government" **
Open Government has two basic parts: Preventing the public from being excluded from decision-making, and facilitating public participation. California's Ralph M. Brown Act of 1953 was designed to address both of these, and explicitly stated this as its intent. However, the State Legislature has failed to adequately update the Act in response to changes in culture and technology. Consequently, measures originally intended to prevent the public from being excluded are now causing the public to be excluded.

As my primary example, I will use the Citizens Advisory Committee (CAC) for the update of the Comprehensive Plan. The CAC is subject to the Brown Act because the City Council called for it to be created?if the City Manager had created it, it wouldn't have been, but that would have created a variety of other problems. I am not going to delve into the law itself, or the interpretations. Instead, my focus will be on what the members of the CAC and similar bodies are told about the law. If you want details, see a widely-used overview of the Brown Act produced by the League of California Cities (PDF, 56 pages).

The Role & Ground Rules briefing given to CAC members included:
"8. Email Communication: ? the Brown Act also requires that members of the group refrain from commenting about the group's activities on social media that may be viewed by a majority of CAC members."
"13. Speaking for the CAC: Only the Chair, Vice-Chair, or other duly authorized CAC member shall speak for the Committee at any applicable non-CAC public hearing, on social media, or in the press. When speaking in public, CAC members may identify themselves as members of the CAC, and may report on any formal actions (motions) adopted by the Committee. However CAC members may not speak for the CAC or characterize and report on discussions of the CAC unless explicitly authorized to do so by the group."

----CAC Rule #8----

My first reaction to Rule #8 was that it is a hold-over from the days when the dominant technology was the photocopier: A small number of hardcopies could be made and distributed in a manner that insiders were likely to see it, but the public wasn't. However, with current technology and practices, the rule violates the intent of the law. For example, suppose a member of the CAC wanted to raise public awareness on a topic about to be discussed?providing a background of facts, tradeoffs and perspectives?and generating public discussion. A practical way to do this would be with a Guest Opinion in the Palo Alto Weekly, a blog posting here on Palo Alto Online, or a topic here within the Town Square Forums. Practical and effective: yes. Legal: apparently not.

Before you argue that a majority of the CAC wouldn't be reading such, ask yourself if someone who is so cut off from the public debate should be serving on the CAC. Recognize that much of the current political unpleasantness is the result of an oligarchy that decided it could depend upon what was being said within their social circles, and ignore outsiders.

That prohibition is not just for Palo Alto Online and similar sites, but for virtually all of social media. In many social media channels, you don't have access to who the subscribers are. You may learn of some of them as they post to the group, but use of an aliases is common/routine in many groups. So how do you tell how many of those posters might be members of the CAC? And what about subscribers who are only reading messages, but not posting? Then there is the part of the nature of social media where interesting messages get re-posted, forwarded? to other social media groups, email lists? My attitude is that any social media group worth posting to on a CAC-related topic is likely to reach a majority of the CAC members, and hence would be a potential violation of this interpretation of Brown Act (the prohibition on "serial meetings" is presumed to apply to electronic media).

So who can CAC members safely communicate with? Small special interests groups who are so insular that their messages are unlikely to leak into other groups. So the failure of the Brown Act to keep up with technology results in contravening its intent: It inhibits dissemination of important information to the public, while favoring the insiders.

An alternative is for the CAC members to limit their discussions with the public to physical meetings so that they can determine how many other CAC members are present. Of course this severely limits the number and categories of people who will participate. Oh, the speaker would also need to ensure that no one is recording the comments on a cell phone and then uploading that to social media. Yeah, right.

One of the very useful attribute of electronic media is that it allows you to learn perspectives of other groups without having to be a member of those groups.(foot#1) On the original CAC, 8 of the 17 members appointed by the City Manager self-identified as belonging to the advocacy group Palo Alto Forward. It seems likely that at least one other member of the CAC subscribes to the PA Forward discussions. Consequently people who were appointed as PA Forward members are likely violating the Brown Act should they attempt to communicate with the membership of PA Forward about the activities of the CAC.

Notice how self-defeating to the goal of open government this is. One of the refrains of this blog is that effective public participation requires providing the public with much better information than they currently receive. They need to understand what the problem being addressed is, what the potential choices are, and how and when to provide effective input. Contrast this to public input for the upcoming (Sept 8) meeting of the CAC: The public is being asked to comment on the old version, not the 2014 draft Update that has been provided to the CAC members. And the meeting itself is likely to use an updated draft Update (as happened at the August meeting).

----CAC Rule #13----

Focus: "?social media? However CAC members may not ? characterize and report on discussions of the CAC unless ?" The larger context indicates that this applies to individual comments by CAC members on social media. Consider that the CAC held its initial discussion of one element of the Comprehensive Plan at its August meeting and is scheduled to have a follow-up discussion during its October meeting. This rule seems to muzzle CAC members during this period, limiting the distribution of information to be by Staff, the press, and a few non-members who attended the meeting. Why shouldn't the members be allowed to provide the public with any valuable information that they learned during the session?

----Instead, encourage communication with the public----

The public would benefit from officials writing publicly about the issues before them. One of the basic approaches to learning is called "See one; do one; teach one", with many reporting that most of their understanding of the topic came during the "teach one" phase. Having to write about a topic is similar to that "teach one" phrase: You have to organize your thoughts, prioritize aspects, deal with omissions, ambiguity, contractions,?

Modern electronic media eliminates many of the barriers imposed by hardcopy newspapers for Guest Opinions, which were dauntingly hard to write. Gone are the tight word limits that made it hard to make more than one or two non-trivial points. Gone is the requirement to carefully and thoroughly consider all the ways that a reader might misunderstand what you have written?misunderstanding that you failed to anticipate can be addressed when they arise. Similarly gone is the need to write for readers with varying levels of knowledge on the topic?you can include links to background material for readers who are new to the topic and links for those who want more detailed information.

Being responsible for dealing with the comment forces you to be more aware of just what is being said. In responding to confusions, you learn to avoid them in subsequent writings. And you see more of the nuances of the various perspectives.

Dealing with the comments in social media is a valuable learning experience for someone who will be dealing with public outreach, be it serving on an advisory committee or as an appointed or elected official. One of the valuable skills is identifying someone who likely has a legitimate concern, but who has articulated it poorly, and then figuring out how to help them into expressing it. The problem is that is one of the favorite tactics of Internet trolls, ideologues and similar miscreants is pretending to be such people.(foot#2) One of the big inefficiencies of government hearings and public outreach comes from the need to "suffer fools gladly", and dealing with comments in social media can help potential officials develop their approach and determine their tolerance levels and thresholds of pain.(foot#3)

The problem with this is that Internet culture regards bullying and other abusive behaviors as "free speech", and except in extreme cases, so does the legal system. Many people fail to understand how exhausting and soul-crushing it is to face a barrage of venomous messages. The occasional suicide makes news, as do the campaigns where prominent people come to fear for their physical safety. But it is also enough to drive many ordinary people away from participating. Although the policing of comments here on Palo Alto Online has improved greatly in the past two years, the level of abusive behavior is still well above what many residents are willing to tolerate. Given the political culture of Palo Alto, I don't foresee the moderators of the comments here being able to do much more: It is too easy for the person being intentionally abusive to claim it was unintentional, and receive support for that (from fellow trolls?). Similarly, obviously intentional misinterpretation are either blamed on the original author or excused as a lack of careful reading, or other failures from what many of us regard as proper due diligence.(foot#4) Because this has been so extensively covered elsewhere, I am declaring it off-topic here.

The only way I see for the situation to improve is to "crowd-source" leadership in this area. The friends of the person being attacked need to chime in, and quickly. That creates a virtuous cycle that both discourages the miscreants from piling on and encourages other supporters. What too often happens now is the opposite, the vicious cycle.

----Downstream: Raising expectations for applicants and candidates----

If officials and members of advisory committees come to be expected to occasionally publish on the general issues before them,(foot#5) this will cause the question of their ability to do so become part of the electoral or appointment process. This in turn will encourage the candidates and applicants to have a publication record that will enable better assessment of their qualifications.

For example, look at the applications for the five additional positions on the CAC. If I didn't know any of these people, I would have had a very hard time deciding who would be an effective member, much less choosing a mix to cover the broad range of the Comprehensive Plan. Since the applications don't give much help, the selection process is heavily determined by who is already known. When "being known" is little more than being a crony, this is bad. But there is also a "glass ceiling" problem: In an organization with many people working on issues, often the only person who is "known" is the primary spokesperson, and after years in that position, that spokesperson is often little more than than that. The appointment process needs to reach further down into these organizations, and the only way I see that happening is to open up additional paths for those second- and third-tier workers to become visible.

If you choose to look at the CAC applications, do not focus on how little the applicants said that would be useful in determining their qualifications, instead look at how little opportunity they were given to provide that information, and the lack of encouragement to do so.

I discussed related problems in the application process in an earlier blog "Unrepresentative Sample of the Community?" (2015-05-15) that began with " 'Who are these people? I've never heard of them!' "

----Tangential: Teleconferencing rules suppress participation----

The Brown Act allows for officials to participate in meetings via teleconferencing (video or audio-only). While the briefing materials(foot#6) explicitly address doing this from a hotel room or private residence using a laptop, the rules themselves seem stuck in a bygone era, for example the location of such a "teleconferencing facility" needs to be part of the meeting announcement, and the announcement and agenda need to be posted in advance at that "facility". This has led to all kinds of absurd situations.(foot#7) Aside: I find it interesting that the Brown Act is widely regarded as so important as to be honored to the letter in the face of these absurdities, but not important enough to be updated to resolve them away.

For citizens wanting to serve on commissions, boards, advisory committees?and as elected officials, problems with teleconferencing suppress that participation at two levels. First, at the level of individual meetings. The absurdities too often result in officials not being able to participate. Recognize that virtually all materials for the meetings are distributed electronically, so an official on travel gets the same as all the other officials. And video conferencing applications and available bandwidth don't impose limits that I have heard anyone complain about. Yes, the official can't choose to scan the audience?public and the other officials?for their reactions during a presentation, but this is a standard limitation of teleconferencing that most people note, but don't see as a serious problem.

Second, and perhaps more importantly, it prevents people with jobs that demand various amounts of travel from applying, or being appointed, to the various commissions and boards. For example, some can't "guarantee" that they will physically attend a certain percentage of meetings. Other know that they will be out of the area for a couple of months during the 3-4 year term, and are told that that is disqualifying.

----Footnotes----

1. In pre-modern times, groups communicated via hardcopy newsletters. Since producing and delivery those newsletters involved significant costs, typically the only way to become a subscriber was to become a dues-paying member.

2. Trolls vs ideologues: Ideologues will fabricate and distort facts to fit their belief system, and demonize those that disagree with them. Trolls don't have a belief system, but are socio/psychopaths who take pleasure from being destructive, both to the discourse and to individual participants. But the two are not mutually exclusive.

3. "Suffer fools gladly": Some overlapping situations/ambiguities:
? The "class clown" who doesn't have anything useful to say, but has a captive audience to witness his brilliance. Or is the speaker someone who was unsuccessfully trying to use humor to highlight a point, and instead obscured that point?
? Self-important or insecure people who have nothing to add, but believe that they must be seen speaking. Or is the person speaking because they have been told that the biggest influence on the decision is not the quality of what is said, but the quantity of speakers?
? There are people who didn't get around to "reading for comprehension", but seem to be simply reacting to select keywords (reading comprehension less than that of a Palo Alto middle school student). Alternatively, this could be a person with a reading disability. Or it could be someone pretending to misunderstand.
? People who are otherwise too lazy, or pressed for time, to have an informed opinion, but insist on spouting off anyway.
? People who "don't let facts get in the way of their opinions."
? People who failed to engage their brains before running their mouths.

4. "A liberal is a man too broad-minded to take his own side in a quarrel" is widely credited to the poet Robert Frost, but pre-dates his 1961 usage. My experience is that "broad-minded" is too often but a rationalization for moral cowardice. For example, that version of liberalism allows the adherent to avoid confronting the bully by prioritizing the bully's rights over the rights of his target. In online discussions, this translates into regarding the bully as having the right ("free speech") to hurl specious accusations and maliciously misrepresent the positions of others, while disregarding that that behavior, in forcing the bully's targets out of the forum, is depriving the targets' right to participate. A classic instance of this attitude occurred in 1977 when neo-Nazis sought to march in Skokie Illinois, a town with many Jewish residents, including Holocaust survivors. The position of the ACLU and many liberals rejected the obvious, the choice of location was separate from "free speech" protections, and that choice was made to heighten the spectacle by inflicting pain on involuntary participants (the town's residents). For many in my generation, this was a watershed event in realizing how degenerate liberalism had become: It was now actively seeking ways to rationalize abusers and evil as victims needing protection. And rejecting "The Constitution is not a suicide pact."

5. Publication excludes quasi-judicial matters, where such prohibitions are well-justified.

6. Technological Teleconferencing, pages 25-26 in the PDF; pages 19-20 if going by the number in the hardcopy footers.

7. Teleconferencing absurdities examples:
? The official has arranged with the hotel to post the required announcements on the door of his hotel room, but upon arrival finds it is not there, resulting in him being unable to participate in the meeting. It may have been that the hotel didn't post it, or that the previous occupant of the room or the cleaning staff took it down. Doesn't matter. Notice hasn't been up for the required period = unable to participate.
? The official gets put into a different room because the occupants of the hotel room that he was to have been in have extended their stay. He is unable to participate because it is past the deadline to announce his new hotel room as a "teleconferencing facility" (even if it is only next door).
? A funny variant: A official got moved out of the designated room because of a maintenance problem (plumbing?), but since the meeting occurred after the maintenance crew was gone for the day, she manage to persuade the hotel management to let her temporarily back into the designated "teleconferencing facility".
? Too socially awkward: An official was visiting her parents at their home on the East Coast. With the time difference, the meeting would be occurring after her parents went to bed, so her participation would have gone unnoticed except for that notification that would have had to be posted prominently on the front door of her parents' house. While the parents might have pretended to understand, their friends dropping by wouldn't have. The Brown Act made the official unnecessarily choose between not embarrassing her parents and her obligations to the public.
? Hypothetical: If you are teleconferencing in from a private residence in, say, the hamlet of Hornby NY (population: minuscule; traffic lights: none), what is the purpose of having to make provision for some unknown person to wander in to utilize your teleconferencing set-up to a meeting in Palo Alto? I shouldn't rag on poor Hornby: Even if you are on a business trip in Boston, LA, Sacramento, ? the probabilities of someone else coming to your "teleconferencing facility" are also vanishingly small. What also seems vanishingly small are the cases where the public would benefit from being able to share an official's "facility".


----Boilerplate----
An abbreviated index by topic and chronologically is available.

The Guidelines for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

I am particular strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", don't be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.

If you behave like a Troll, don't waste your time protesting when you get treated like one.

Comments

 +   2 people like this
Posted by Citizen, a resident of Barron Park,
on Sep 3, 2015 at 6:16 am

"8. Email Communication: ? the Brown Act also requires that members of the group refrain from commenting about the group's activities on social media that may be viewed by a majority of CAC members."

That's a misreading of the Brown Act. The Brown Act requires that members not discuss and deliberate outside of a meeting. It doesn't require that they hide their opinions from the public, including other members. If multiple members respond on the same posting on social media, so that they are holding a discussion outside of a meeting, that's a potential problem (although they still have to constitute a quorum to violate the Act).

"However CAC members may not speak for the CAC or characterize and report on discussions of the CAC unless explicitly authorized to do so by the group."

It certainly doesn't violate the Brown Act to "characterize and report on discussions of the CAC." In fact, members have a First Amendment right to do that and it serves the public interest for them to report on what's happening, and what they think about it.

Misinterpreting the Brown Act is a persistent problem, in both directions -- overly aggressive, and insufficiently rigorous (particularly in adhering to notice requirements for closed sessions).


 +   1 person likes this
Posted by Terry Francke, General Counsel, CalAware, a resident of another community,
on Sep 3, 2015 at 10:55 am

The last sentence of "Citizen"s comment is the heart of the problem: "Misinterpreting the Brown Act is a persistent problem, in both directions -- overly aggressive, and insufficiently rigorous (particularly in adhering to notice requirements for closed sessions)."

It's not unknown for local agency staff and counsel to maintain control over communications concerning the work of their local bodies by misquoting the Brown Act and distorting its requirements to the public and to those they advise, and on the other hand ignoring Brown Act requirements for transparency and disclosure when doing so helps keep the public in the dark.

Rules 8 and 13 are good examples of the former.

Rule 8: " . . . the Brown Act also requires that members of the group refrain from commenting about the group's activities on social media that may be viewed by a majority of CAC members."

Not only does the Brown Act not refer to social media at all, a serial meeting violation of the Brown Act (if that's what the rule has in mind) does not occur unless a majority of the body's members, outside an official meeting, engage in collective discussion or action on an item of agency business. Making one's views known to the community, either by Internet posting, making a speech or writing a letter to a newspaper, is among the speech rights retained by public officials and hardly inconsistent with their official duties ? or with the Brown Act.

Rule 13: " . . . CAC members may not . . . characterize and report on discussions of the CAC unless explicitly authorized to do so by the group."

Not only is there no basis for this restriction in the law, but it's flatly contrary to the First Amendment. Local body members are not jurors and have the right to say what they please about their body's discussions, so long as they make it clear they're speaking for themselves.


 +  Like this comment
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 3, 2015 at 1:01 pm

Douglas Moran is a registered user.

The above comments are dead-on what I suspected was the situation (what officials were being told vs what the law is). Rather than burying that in the second paragraph, I should have had a few more words in the title "Brown Act being used to Inhibit Open Government".


 +  Like this comment
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 3, 2015 at 1:16 pm

Douglas Moran is a registered user.

> "If multiple members respond on the same posting on social media, so that they are holding a discussion outside of a meeting,..."

What I have been told by Palo Alto Council members is that if a majority (quorum) of them are attending a non-noticed meeting, such as a public-outreach workshop, that if any one of them makes a comment, that creates a "meeting". This always struck me as overly aggressive (as the two previous commenters stated), but it was repeated by enough officials over enough years that I came to regard it as the accepted interpretation.

Notice that when you apply this notion of "meeting" to social media, it is analogous to an official posting where a quorum of other officials could read it.

In engineering, there are two basic responses to people making mistakes using the product. One simply blames the user ("luser"). The other blames the design and tries to fix it. I belong to the latter.

So I would pose the question that if the Brown Act is so often misinterpreted by the entrenched powers to stifle open government, shouldn't we be talking about how to modify the Brown Act to make it easier for the citizenry to push back against misinterpretations and misapplications?


 +  Like this comment
Posted by jlanders, a resident of Barron Park,
on Sep 3, 2015 at 1:47 pm

jlanders is a registered user.

> shouldn't we be talking about how to modify the Brown Act

Unless you're thinking about minor technical updates, that would be a mistake. The opportunity would almost certainly be hijacked by special interests. Those interests would be making changes to the law for the worse.

The response to a Skokie-type event shouldn't be an effort to rewrite the First Amendment. The answer is proper application and enforcement of the law.

What's needed to "fix" the Brown Act is for a few brave souls to challenge the mis-application and over-interpretation of the law. As citizens, our duty is provide these folks with support and cover when they're attacked by their opponents. A body of case law would be much more valuable than potentially gutting a law that has had, overall, a very positive impact on open government in California.


 +  Like this comment
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 3, 2015 at 2:02 pm

Douglas Moran is a registered user.

jlanders is so very right (and the previous commenters):
I fell into the trap of thinking as an engineer (mechanism = law) rather than in a political mindset.

Expanding on what he said about being more effective by providing citizens with better tools to push back when they suspect that they are being "misinformed":

One additional example would be a briefing/FAQ on the Brown Act that dealt not just with what it called for, but with how the "local agency staff and counsel" (Francke above) misinterpret the Act, and then to undertake the various measure needed to get that briefing/FAQ a high Google ranking so that citizens can find.

Note: In writing the original post, I did use web search simulating a CAC member who was skeptical about the two rules I cited and didn't find anything that would give me enough confidence to challenge the rules on my own (the search results are cluttered with many repetitions of essentially the same interpretations).


 +  Like this comment
Posted by Citizen, a resident of Barron Park,
on Sep 3, 2015 at 8:35 pm

"What I have been told by Palo Alto Council members is that if a majority (quorum) of them are attending a non-noticed meeting, such as a public-outreach workshop, that if any one of them makes a comment, that creates a "meeting". This always struck me as overly aggressive (as the two previous commenters stated), but it was repeated by enough officials over enough years that I came to regard it as the accepted interpretation."

If the city itself hosted the meeting, there may be a Brown Act issue. However, if the members are attending a conference or other public event, open to the public, they fall under a specific exemption to the Brown Act that allows them to participate in the conference even if it involves matters under the jurisdiction of the body. They must simply avoid discussing among themselves issues that will come before the Council.


 +  Like this comment
Posted by Curmudgeon, a resident of Downtown North,
on Sep 4, 2015 at 12:22 pm

More honoured in the breach than in the observance

(Apologies to Mr. Shakespeare)


 +   1 person likes this
Posted by Peter Carpenter, a resident of Atherton,
on Sep 4, 2015 at 3:05 pm

Peter Carpenter is a registered user.

"8. Email Communication: ? the Brown Act also requires that members of the group refrain from commenting about the group's activities on social media that may be viewed by a majority of CAC members."

As an elected official, the nephew of one of the authors of the Brown Act and a very frequent poster on this Forum I can assure you that this is an improper interpretation of the Brown Act.

All too often the Brown Act is used as an excuse for not having open and public discussion of important political issues.


 +  Like this comment
Posted by Douglas Moran, a Palo Alto Online blogger,
on Sep 4, 2015 at 3:58 pm

Douglas Moran is a registered user.

RE: Terry Francke "engage in a collective discussion"

Part of the problem for the layperson is the meaning of this phrase. For example, I regard myself as part of a discussion when I decide to join it to hear what people are saying with the potential of adding my comments, perspective,...
1. If I decide to say nothing because what I would have said was already covered by other participants, I do NOT regard myself as not having participated in that discussion.
2. If I do say something, I regard my participation in the discussion as beginning when I started listening, not when I said something.

The intent of the Brown Act is to prohibit a quorum of officials from having a discussion among themselves that excludes the public.
But does a quorum of officials participating in a discussion in a public forum constitute a discussion among themselves? While many agree that it shouldn't, I am not finding an authoritative statement that says it doesn't and where the line is. For example, you don't want to allow a quorum officials to show up at a publicly announced physical meeting of a favored special interest group and using that to have a discussion among themselves. Similar tricks can be played with social media and other online discussion groups.


 +  Like this comment
Posted by Peter Carpenter, a resident of Atherton,
on Sep 4, 2015 at 4:09 pm

Peter Carpenter is a registered user.

"But does a quorum of officials participating in a discussion in a public forum constitute a discussion among themselves?"

In my opinion yes it does. The keys are "quorum" and "discussion".

That is different than an individual elected official expressing her/his opinion in such a forum.

As soon as sufficient additional individuals from the same elected body to constitute a quorum start commenting/replying then there is a possible Brown Act violation.

Sadly 99% of our local elected officials won't touch social media and as a result there is far less meaningful communication on important public policy issues than there should be. For example would it it be enlightening if Supervisor Simitian were to participate in the Forum discussion on BV?


 +  Like this comment
Posted by Peter Carpenter, a resident of Atherton,
on Sep 4, 2015 at 5:20 pm

Peter Carpenter is a registered user.

The Brown Act in the online world is really no different than in the physical world - if a quorum of an elected body find themselves in an elevator they know to stop talking.

If I am in a Forum or an email exchange and another Fire Board Director shows up I go on high alert. If a second one shows up, thereby constituting a quorum of the five member Board, I stop posting/responding.
In fact, the probabilities of any other elected official showing up on this Forum are infinitesimal.


 +  Like this comment
Posted by curmudgeon, a resident of Downtown North,
on Sep 5, 2015 at 3:34 pm

"If I am in a Forum or an email exchange and another Fire Board Director shows up I go on high alert. If a second one shows up, thereby constituting a quorum of the five member Board, I stop posting/responding."

Slick, but it won't fool a competent judge.

Building on your scenario, suppose you are a Brown Act official and have posted your opinion on a forum all of your colleagues read. You have thus communicated with them.

Now suppose they each posted their positions on other individual forums that all members read. No quorum on any one forum. Yet any sentient being would recognize that as a stealth serial meeting that violates the BA.

[[Removed: extraneous and started exchange that has been removed.]]


 +   1 person likes this
Posted by Peter Carpenter, a resident of Atherton,
on Sep 5, 2015 at 3:42 pm

Peter Carpenter is a registered user.

Curmudgeon - You did not read my post:

"If I am in a Forum or an email exchange and another Fire Board Director shows up I go on high alert. If a second one shows up, thereby constituting a quorum of the five member Board, I stop posting/responding." And in fact all of my colleagues would do exactly the same thing so what you postulate would not happen.

[...] you fail to recognize that most people can and do obey the law. [...] because [...] would use the Brown Act to stop any elected official from ever speaking to anyone because they could not be certain that their colleague had not/would not talk to the same person.

Illegal serial meetings happen on purpose not by accident and competent elected officials know exactly how to avoid that impropriety.


 +  Like this comment
Posted by Peter Carpenter, a resident of Atherton,
on Sep 5, 2015 at 3:48 pm

Peter Carpenter is a registered user.

[...] here is the Attorney General's guidance:

"Once serial communications are found to exist, it must be determined whether the
communications were used to develop a concurrence as to action to be taken. If the serial
communications were not used to develop a concurrence as to action to be taken, the serial
communications do not constitute a meeting and the Act is not applicable"


 +  Like this comment
Posted by Curmudgeon, a resident of Downtown North,
on Sep 6, 2015 at 1:24 pm

@Peter

Nobody is accusing you personally of any wrongdoing. At least, I am not.

[...]


 +   1 person likes this
Posted by Eric Rosenblum, a resident of Downtown North,
on Sep 8, 2015 at 8:09 pm

Douglas-

thank you for opening this topic. I have found the Brown Act restrictions to be confusing (and often counterproductive to transparent government). I think that our city attorneys are also wrestling with interpretations of the Brown Act, but will usually use the most restrictive possible interpretation. This has had an unfortunate chilling of participation by elected officials in the "public square", which could not possibly have been the intent of the Brown Act.


 +   1 person likes this
Posted by Peter Carpenter, a resident of Atherton,
on Sep 8, 2015 at 8:18 pm

Peter Carpenter is a registered user.

Eric - The role of lawyers is to give advice and they tend to be risk aversive.

Each elected official can and should act in the best interests of the citizens whom we were elected to serve not the interests of the risk aversive lawyers.

I have found the Attorney General's and the California League of Cities' web sites on the Brown act to be very helpful.


Sorry, but further commenting on this topic has been closed.

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