California’s Brown Act, approved in 1953, is supposed to guarantee public participation.
Today it has become a gag rule.
The act’s requirements of advance notice before local officials hold a meeting has mutated into strict limitations on their ability to have frank conversation with one another. Brown Act requirements that we, the public, be allowed to weigh in at meetings have been turned against us, by way of a standardized three-minute-per-speaker limit at the microphone that encourages rapid rants and discourages real conversation with local officials.
The Brown Act has empowered professionals outside the civic space — lawyers, labor unions and especially developers — to fill the conversation void.
At a UC Irvine conference on the Brown Act in which I participated, speakers discussed how local officials, wary of talking to or even emailing each other and violating Brown Act rules against unannounced meetings, often communicate through developers, who are much freer to meet and talk. (This is why proposed reforms to limit the influence of developers — Los Angeles Mayor Eric Garcetti just announced a ban on meetings between city planning commissioners and developers — never work.)
The fundamental problem with the Brown Act is not that the law changed. It’s that the law has stayed too much the same, while California governance has changed radically.
Back in the 1950s, when the Brown Act was passed, local governments largely ruled via broadly applied laws, policies and plans. But in subsequent decades, court decisions, state laws and ballot initiatives like Proposition 13 have limited the power of governments. So to retain some fiscal self-determination, local governments have worked around the law, ignoring plans and policies they once followed, and instead embracing ad-hoc decision-making. The most important tool for today’s local governments is not the ordinance or the general plan but, rather, negotiations through union contracts and developer agreements.
In this era of government by negotiation, the Brown Act is unhelpful when it’s not beside the point. First, the act’s limits on meetings end up restricting the ability of elected officials to participate fully in such negotiations. Second, the Brown Act covers only public meetings, and thus doesn’t get people into meetings where city officials make decisions behind closed doors. All too often the public hears about negotiations only once deals are done, and brought to a council or a board for approval.
Consulted only at that late stage, California citizens understandably respond by opposing their local politicians fervently and uncompromisingly. In this way, the Brown Act encourages the worst sort of NIMBYism.
Many ideas have been raised for changes in the law. But the act has created a regime so antithetical to the goal of public participation that it might be better to scrap it and start over — with a new framework that provides local governments with more flexibility as long as they pursue policies that enhance public participation in decisions. The National Civic League has a model participation ordinance that suggests what such a law could look like.
Who could oppose such sensible changes?
Answer: Civic groups and media organizations are suspicious that reform would limit access; they claim local officials are being overly cautious in limiting conversations because of fear of Brown Act violations. But the caution is well-advised, given how easy it is to sue for violations of the act, and thus block important projects.
In the meantime, the everyday reality of California public meetings grows ever more absurd. At my local school board, our city’s mayor recently asked questions about the management of a newly approved school bond, the largest in our small district’s history. But the board members wouldn’t answer them. Instead, they cut her off after just three minutes, noting that’s the limit on public comment. The school superintendent said that any exchange could be a violation of the Brown Act.
Any law that won’t let a mayor and a school board talk freely about their city’s most important construction project isn’t worth keeping. Until our local governments move past the Brown Act, Californians won’t be able to have the conversations that local democracy requires.
Joe Mathews writes the Connecting California column for Zócalo Public Square, a Los Angeles- based nonprofit that publishes original essays by journalists. For more information, go to www.zocalopublicsquare.org.