Modesto Bee
January 27, 2010
By Ruben Villalobos
For more than 50 years, local public agencies in California have been guided by the principles of open government and transparency established in the Brown Act.
The mandate of the act is simple: Unless a specific exception applies which allows for a closed hearing, all business and discussion conducted by a majority of a board must be conducted in public. The exceptions all concern compelling needs for privacy, such as an employee’s right to privacy in personnel matters, a student’s right of privacy in disciplinary proceedings, or a district’s need for privacy in conducting litigation or negotiating employment contracts. Furthermore, through Proposition 59, which was overwhelmingly passed by voters in 2004, Californians now have a constitutional right of access to public meetings. Under Proposition 59, any closed-door exceptions are to be narrowly construed.
The act only prevents boards from conducting business in private. It places no restrictions on a board’s ability to attend events or conferences together, so long as business is not discussed by a majority of the board. The act requires that an agency provide public notice of meetings and agenda items, and allow for public comment at those meetings. The act also requires that written and electronic communications, such as e-mails or social network posts comply with the act.
‘It is the intent of (the Brown Act) that (a public board’s) 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 they have created.’ — Introduction to the Ralph M. Brown Act.
In other words, the act requires that a public agency conduct its business in public. It is just that simple.
While the act contains provisions for civil and criminal sanctions for violations, it in no way binds or restricts elected officials in the performance of their duties. In fact, the opposite is true. The act is liberating, if its spirit of openness is followed.
Elected officials can speak freely. They can insulate themselves from claims of back-room deal making. They can get the full benefit of the wisdom of their entire board, and not just the insight of one or two colleagues. They can benefit from the wisdom of constituents, regardless of whether the constituent is for or against any particular proposal.
When the spirit of the act is followed, an elected official can bend to the collective will of the board when appropriate, or hold firm to a principled minority opinion. In short, the act allows an elected official to do the people’s business and sleep well at night, knowing that a decision was made after careful thought, a public hearing and public input.
We do not have to look across our oceans to see why transparency in local governance is so important. We only have to look back to our recent political history. Not that long ago, Tammany Hall-type political machines implemented life-affecting back-room decisions, such as where our children could attend public schools and where people could buy a home or open a business. Fortunately, those days are behind us.
Sometimes, a board has to make decisions that are tougher than others. In these toughest of times in recent memory, these decisions might cost the jobs of hard working employees already reeling from the effects of our national economic crisis. Undoubtedly, these decisions may also come down to hard choices, such as how to support the arts and sports in times of limited revenue.
Only through the guidance of the public can elected officials make informed decisions on these tough choices.
The public will only tolerate these decisions if transparency is more than just a buzz word that is carelessly tossed around. Rather, transparency must be honored as a guiding principle of public governance.
It is time to put all of our cards on the table and work together to come up with the best hand.
Villalobos is a Modesto attorney and a newly elected member of the Modesto City Schools board.