Brown Act Inhibits Open Government | A Pragmatist's Take | Douglas Moran | Palo Alto Online |


https://paloaltoonline.com/blogs/p/print/2015/09/03/brown-act-inhibits-open-government


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By Douglas Moran

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.

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