The Daily Triplicate
Commentary
February 01, 2010
By Kurt Madar
Non-public events are being used by our public officials. Del Norte County is a patchwork of governing jurisdictions, and one of the the ways they communicate with each other is being questioned. The method is known as a “two-by-two” meeting, in which two members of each participating agency take part.
Since that doesn’t represent a quorum of either body, the meetings don’t have to be announced in advance and the public isn’t necessarily invited.
In a recent e-mail to legal counsel, City Manager Rod Butler and Harbormaster Richard Young questioned whether two-by-two meetings involving the City Council and the Harbor Commission are legal.
Two such meetings involving city and harbor officials have been held to discuss connecting the harbor to the city’s new waste water treatment plant, and possible annexation of the harbor by the city.
The meetings have included the same four elected officials: Mayor Kelly Schellong, Councilman Dennis Burns and Harbor Commission members Jack Reese and Scott Feller.
They also have included Butler and Young.
“These meetings are important because it’s how we communicate between governing agencies,” said Reese. “They are really just a discussion, but the informality helps the flow of information.”
Butler and Young sent their e-mail to Bob Black, who is the attorney for both the city and the harbor.
It asks Black to research whether two-on-two meetings are legal, and was in response to concerns voiced by City Councilwoman Katherine Murray and Harbor Commissioner Ron Phillips, both of whom have been caught by surprise by unannounced two-by-two meetings.
“This inquiry is definitely due to the concerns of Katherine Murray and Ron Phillips,” said Butler. “We felt that it would be best to get a clear understanding of the rules.”
Phillips and Murray both expressed concerns that the informal meetings were at best lacking in transparency due to the lack of public oversight, and at worst a possible violation of the Brown Act.
According to the California Attorney General’s Office, the Brown Act seeks to ensure that the public has open and free access to the legislative process, and it requires that almost all decisions be made in an open public forum.
According to the Brown Act, the only decisions that can occur behind closed doors involve labor disputes, lease agreements and civil suits.
Because two-by-two meetings are informal and involve less than a majority of board members, it becomes difficult to specify how the Brown Act applies, said Black.
The law primarily refers to meetings where a majority of members are present and action can be taken.
Black said he hasn’t had time to complete the analysis that the e-mail asked for, but said he believes that the meetings are covered by the legislation in a very general way.
What happens after a 2-by-2
One provision of the Brown Act is that “serial meetings” are illegal.
“A chain of communications involving contact from member A to member B who then communicates with member C would constitute a serial meeting in the case of a five-person body,” states the Attorney General’s Office in a document explaining the Brown Act legislation.
“For council or board members to communicate with each other isn’t necessarily illegal,” Black said. “But they can’t carry it to another level by talking to a third board member.”
The Attorney General’s Office agrees with Black’s assessment:
“If the serial communications were not used to develop a concurrence as to action to be taken … they do not constitute a meeting and the act is not applicable.”
Are local two-by-two meetings a breeding ground for back room deals?
That depends on who you ask.
“They are absolutely not illegal,” said Reese. “They’ve been doing this for a long time. But it is a fine line between communicating with your colleagues and getting things done.”
But Reese added, “Don’t try to tell me that that rule is never broken at all levels of government.”
Both Schellong and Burns said they knew that serial communications were illegal, and said they take great care about what they communicate to fellow council members after two-by-two meetings.
“Two-by-two meetings are just a discussion,” Burns said. “ No one can make a commitment. One of the reasons we have staff there is to make sure that everything is legal.”
Butler agreed.
“We are like the traffic cops of two-by-two’s,” he said referring to himself and Young. “We tell them when things need to be taken before the full council.”
At the harbor level, Commissioner James Ramsey said some post-meeting communication does happen.
“I’m sure that some of the e-mails I’ve gotten are the product of two-by-two’s,” said Ramsey. “But they never say whether it’s directly from the two-by-two.”
The Attorney General’s Office acknowledges that some post-meeting communication is legal, even necessary, but that it quickly becomes problematic:
“Problems arise when systematic communications begin to occur which involve members of the board acquiring substantive information for an upcoming meeting … Under these circumstances the public would be able only to witness a shorthand version of the deliberative process.”
Worried about transparency
Both Phillips and Murray said the two-by-two meetings could be making local government less open to the public.
“The first time this came up was when there was a two-by-two meeting between the harbor and the city in regards to annexation that no one else knew about,” Phillips said. “I talked to Murray and we were each bothered not knowing it was going to happen.”
Murray said she was concerned because she feels that it opens the door for interaction that the public doesn’t get to see.
“It seems to me that we haven’t had any reporting on what went on in the two-by-two meetings,” Murray said. “What I would like to do is encourage as much transparency as possible.”
Phillips wants to take it a step further.
“My belief is that there is no reason for the harbor to meet with either the city or the county unless we are all there, including the public,” Phillips said. “I think that all commissioners and the public should have input on any kind of meeting.”
Black feels that the crux of the issue is the concept of transparency.
“The first focus of my research is when do two-by-twos have to be posted as a meeting to which the public is entitled to attend,” Black said. “The problem of serial communications isn’t limited to two-by-two meetings, it is when any three board members communicate outside of public meetings.”
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