Legal experts say that California’s open meetings law does not allow cities to create secret advisory committees not open to the public. -db
Pasadena Star-News
August 14, 2010
By Brenda Gazzar
PASADENA – Open government advocates said city officials should release the names of members of two secret review boards that advise the police chief.
At least one expert also argued that the panels should convene in conformity with state open meeting laws.
Police Chief Phil Sanchez declined last week to name either civilian or Police Department employees who serve on the city’s Use of Force and Discipline Review boards, citing concerns for their safety.
“It’s not a terribly complicated or esoteric question,” said Terry Francke, a California open government law expert and general counsel for Californians Aware. “If they have to release the names of people on the City Council or the Planning Commission, or a Library or Parks Commission, they have to release the names of the people on this board. It’s in the same category” under the Ralph M. Brown Act, the state’s Open Meeting Law for local governments.
The Brown Act does not authorize closed sessions for safety and security concerns, Francke said, and “public agencies aren’t allowed to make up their own justifications.”
The Pasadena City Council approved the establishment of the two boards in a formal action in 1994. It is unclear if a third board created at the same time, the Risk Management Review Board, is still in existence.
The California Court of Appeal concluded in a 1993 case that when an advisory body is created by the formal action of a local agency’s governing body, “that formal action makes the advisory body subject to the Brown Act, even if the members are appointed by staff rather than the body itself,” Francke said.
Under Pasadena’s charter, citizen review boards are comprised of police employees and community members who are graduates of the Citizens’ Police Academy. Currently, there is a pool of 60 certified volunteers qualified to serve on the boards when needed, officials said.
The Discipline Review Board, which the chief has the option of convening when a personnel investigation is completed and includes three citizens, determines whether a policy has been violated by a department employee and recommends discipline.
The Use of Force Board, which includes up to four citizens, makes recommendations to the chief related to training, tactics and equipment in cases where use of force by an officer has been deemed justified and the chief deems it necessary, Sanchez said.
The Police Department did not convene the Use of Force Board to review officer conduct following the Leroy Barnes shooting in 2009, Sanchez said.
Barnes, 38, was fatally shot by two Pasadena officers after the officers said they saw him reach for a gun. No charges were filed and the shooting was deemed justified.
Unjustified uses of force are sent to the Police Department’s Internal Affairs Division for investigation, officials said.
Board appointments are made by the police chief.
Sanchez said revealing members’ names could jeopardize their safety.
“It could be that there’s a person on the board, because of their participation on the board, their decision would subject them to public ridicule, influence or intimidation,” Chief Sanchez said, citing a hypothetical scenario. “Board members are volunteers. They don’t have tactical training or self-defense training … I wouldn’t want them to be placed in a position of unnecessary vulnerability.”
If the names were released, and the community volunteers perceived they were at risk, “it could be that they would refuse or elect not to participate,” Sanchez added.
City Council members are split on the issue.
City Councilman Steve Haderlein of District 4 said since the boards deal with personnel matters, their names should be kept confidential.
“You are dealing with an individual’s career… They are part of that process,” he said. “The process is kept confidential and those (involved) in the process are kept confidential.”
City Councilman Victor Gordo of District 5, however, disagrees.
While Gordo said he would listen carefully to the chief’s concerns about safety, “in my mind, any group of community members … or any other body that advises and informs the city as it relates to any policies, should be made public and its membership should be made public.”
Peter Bibring, a staff attorney at ACLU-Southern California, said while the content of what a board hears in a personnel matter may be protected by state law, who is making a decision or recommendation is “an entirely different matter.”
“That’s basic information about how government works and (community members) have a right to know,” he said.
Francke, however, said he seriously doubts Pasadena’s citizen review panels are allowed to hold closed sessions to discuss personnel issues.
An Attorney General’s opinion has concluded that closed sessions related to personnel issues apply only to bodies that employ the personnel, which in this case would be the City Council, he said.
To comply with the Brown Act, the city would have to post meeting agendas and admit the public to any meeting that is not permissibly closed under the state law, Francke said.
Sanchez said he is exploring all options and will consult with the Pasadena City Attorney’s office to take “the next best step” while supporting the community, the department and its volunteer program.
“I understand deeply the need and the desire of our community to know information that emanates from their Police Department,” he said during an interview Thursday in his office. “I get that. There is a balance at times that I have to be concerned with my employees’ well-being, and that’s extended to my volunteers.”
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