BY PETER SCHEER—-California’s open meeting law, the Brown Act, was enacted four decades before the arrival of the internet, a quarter century before the first commercial fax machines, and even a few years before “xerox” copying went mainstream. In all the years since, the Brown Act has been amended in ways big and small, but it has never been revised to tap the power of digital technology.
Legislative bodies subject to the Brown Act operate in the dark ages, technologically speaking. Not only does the Brown Act deprive city councils, boards of supervisors and school boards of huge efficiencies available to every 14-year-old with a cell phone, but it also limits the “participatory” part of the “participatory democracy” that the Brown Act was meant to foster.
Take, email, for example. Corporations in today’s economy couldn’t function without email (or text messaging or online collaboration tools like Google Docs). But city council members are forbidden to discuss government business using group email; indeed, doing so is a crime (albeit one that is almost never prosecuted).
Group email is forbidden because communications among a majority of council members constitute an illegal “meeting” under the Brown Act. Such meetings are barred because they are not public; they deny voters the opportunity to observe the council’s deliberations; and they keep voters from participating in the political process, however marginally, by offering their comments at a public hearing.
But wait a minute. Couldn’t the same technology be used in a way that makes legislative deliberations even more public, while also creating more, and more meaningful, opportunities for citizens to register their views with their city council members?
Suppose the Brown Act were amended to permit written digital communications among council members, provided those communications take place in a publicly available, online forum (think of a Facebook page that is open to the public). In that scenario, all communications would occur publicly because they could be seen by anyone. Moreover, the communications would be captured and preserved as verbatim transcripts, available for viewing by the press and public immediately and permanently.
As for public participation, digital communications in a public forum would allow citizens to comment at length, unconstrained by arbitrary time limits, and to submit documentary evidence, pictures, spreadsheets, maps . . . whatever. Citizens who, due to work schedules and other commitments, can’t attend regular council meetings, could still post public comments online.
And while council members tend to ignore public comments at regular open meetings, and rarely deign to dignify them with a response, comments or criticisms on a city council’s uncensored online public forum could not be so easily ignored. Council members would feel a political imperative to read and respond (which, in turn, could lead to further public dialogue, which is a good thing).
All of this would make government decision-making at the local level more transparent and accessible, and make local government more politically accountable as a result.
Some limits would be needed, of course. Digital communications should not be allowed to displace entirely traditional public meetings at city hall. Politics requires the rubbing of shoulders as well as the exchange of typed words on a monitor. Public officials’ seriousness, knowledge of the issues, and candor are better judged in person in a public session than in the dryness of an online exchange.
Nailing down clear (and enforceable) limits would pose perhaps the biggest challenge in amending the Brown Act to adapt it to 21st Century technology. But that challenge is not a reason to avoid modernizing the law. At minimum, digital technology could be used to decide which items to place on a public meeting agenda, thereby opening up an opaque process that now vests too much power in the legislative body’s nominal leader (in the case of a city council, the mayor or city manager, typically making these choices unilaterally). Online virtual meetings are also appropriate to discuss and act on items on the so-called “consent” portion of meeting agendas, since they are never discussed at public meetings at all.
More broadly, digital meetings may be an appropriate forum for legislators to do their homework on issues to be decided at public meetings. Council members can ask question of city staff and fellow board members, with both Qs and As available for the public to see. The public is not served by curbing elected officials’ education on the issues, especially when the internet can provide a clear and complete record of that education.
City Council members shouldn’t be treated as sequestered jurors who must be insulated from the taint of knowledge gained outside of a formally public meeting. They are politicians, after all.
California is the birthplace for digital technologies that the entire country takes for granted. It’s high time California’s cities, counties and school boards were allowed to use them too.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here are his alone; they do not necessarily reflect the position of FAC’s Board of Directors.