Deja Vu in Costa Mesa – Violating Open Government Laws

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City Council members in Costa Mesa are borrowing a trick that Dave Ellis used at the Orange County Fair Board to hide his machinations from public view – two member “working groups” set up to avoid California open government law.

Let’s remember how Dave Ellis and his crew worked out their plans, in a clear pattern of contempt for the laws and the Constitution they were sworn to uphold. They began by eliminating the committees that had previously met publicly, and replaced them with task forces, composed of fewer members.

The open government law that applies to state agencies has an exemption for advisory committees to avoid the strict requirements for legislative bodies which include notices for meetings, agendas, public access to staff reports, open meetings with public comments, and minutes, and the ability for members of the public to make public records requests. If you had a few board members who were assigned a task to decide on judging criteria for the colors of ribbons on award-winning jellies,  you would give them a job like this, and ask them to report back to the full board.

When the Fair Board decided to try to secretly lobby the legislature,  the Chair of the Fair Board established a special “Governance” subcommittee, which quickly became a renegade task force led by Dave Ellis operating illegally outside public view.

Dave Ellis’s “governance committee” and Fair Board CEO Steve Beazley were anything but advisory.

• They surreptitiously spent hundreds of thousands on  attorneys and lobbyists  hired under contracts for environmental review.
• Their consultant submitted false claims through an obscure Sacramento JPA to hide the billing from public view.
• Ellis and Beazley illegally circumvented the Deputy Attorney General, who was the official legal representative of a state agency.
• When challenged, the Fair Board failed to comply with Public Records Act requests or made outright lies in response about the actions taken by the “governance subcommittee”.

After widespread complaints, Orange County District Attorney Tony Rackauckas investigated. His wordy, rambling report can be summarized in fourteen words,  “These aren’t the droids you’re looking for. You can go about your business. Move along”

Now the Costa Mesa City Council is going down that same slippery slope emboldened by T-Rack’s declaration of Costa Mesa as a Sanctuary City for government privateers.

Let’s see what the open meeting law that covers the Costa Mesa City Council says about who qualifies as a legislative body, subject to all of the requirements for open, public meetings;

However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction…are legislative bodies for purposes of this chapter.

That may seem clear enough for most of us, but it’s clear that the Costa Mesa City Council, and their new City Manager and new City Attorney have been emboldened by the District Attorney’s report that whitewashed the numerous violations of law by the Fair Board.

In Costa Mesa,  a two member  Council task force met secretly and decided which of the 18 departments would be eligible for outsourcing. Nobody knows what their criteria were. No one had a chance to comment. There were no staff reports available for public review.

Barbara Venezia reported that when Bill Lobdell was hired to do damage control, the offer came over the phone not from the City Manager, but from Jim Righeimer. Was that after another secret task force meeting where the public had no seat at the table?

Bill Lobdell, Acting Spoke Person for the City of  Costa Mesa, has dedicated Costa Mesa  to a new standard of transparency for government, apparently through FaceBook and Twitter, with an occasional inexplicable PowerPoint thrown in.. Perhaps Bill could remind the Council Members that each of them put their hand on the Bible, and swore to uphold the California Constitution against all enemies, foreign and domestic.

Here’s what the California Constitution says about open meetings:

The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials shall be open to public scrutiny.

Maybe the City Council wouldn’t be able to move as recklessly if they actually followed the law. Who knows?

Update: One of our sources indicates that the Costa Mesa’s new City Attorney has indicated that the law is confusing, but these committees aren’t covered by the Brown Act because they are advisory. To which we respond by referencing the Attorney General’s opinion on the subject, and reminding the Costa Mesa City Council that the Brown Act, California’s Open Government law, is a floor, not a ceiling. The same could be said of Gary Monahan’s comments about what constitutes legal conflict of interest violations.

OPINION of DANIEL E. LUNGREN

THE HONORABLE BRUCE McPHERSON, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following questions:

1.         Are the meetings of a standing committee composed of less than a quorum of the legislative body of a local public agency subject to the notice, agenda, and public participation requirements of the Ralph M. Brown Act, if the committee has the responsibility of providing advice concerning budgets, audits, contracts, and personnel matters to and upon request of the legislative body?

2.         May a fourth member of a seven member legislative body of a local agency attend, as a member of the public, an open and noticed meeting of a less than a quorum advisory committee of that body, without violating the notice, agenda, and public participation requirements of the Ralph M. Brown Act applicable to meetings of the parent legislative body?

CONCLUSIONS

1.         The meetings of a standing committee composed of less than a quorum of the legislative body of a local public agency are subject to the notice, agenda, and public participation requirements of the Ralph M. Brown Act, if the committee has the responsibility of providing advice concerning budgets, audits, contracts, and personnel matters to and upon request of the legislative body.

2.         A fourth member of a seven member legislative body of a local agency may not attend, as a member of the public, an open and noticed meeting of a less than a quorum advisory committee of that body, without violating the notice, agenda, and public participation requirements of the Ralph M. Brown Act applicable to meetings of the parent legislative body.

ANALYSIS

A public water district in Central California is governed by a seven member board of directors.  The board has established a subcommittee of three members to advise the board on administrative matters as needed.  The subcommittee has been in existence for several years and generally meets monthly, but it does not have a fixed meeting schedule and operates under the following rule:

“The Administrative Committee shall consist of the three Directors appointed by the Chair and approved by the Board.  This committee shall not exercise continuing subject matter jurisdiction. Its purpose shall be to advise the Board on administrative matters as appropriate.  The Board of Directors shall not fix the meeting schedule of this committee.  The committee may meet on the call of the chair or as decided by the members.  Action taken by the Administrative Committee shall be subject to final Board approval.”  (Italics added.)

The two questions presented for resolution concern the circumstances and conditions under which the meetings of the board’s subcommittee must be open to the public.

The Ralph M. Brown Act (Gov. Code, §§ 54950-54962; “Act”)[1] provides that “[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of a legislative body, except as otherwise provided in this chapter.”  (§ 54953, subd. (a).)[2] Unless otherwise authorized, notice must be given of each meeting to those who request it (§ 54954.1), an agenda must be posted (§ 54954.2), and the public must be provided an opportunity “to directly address the legislative body” (§ 54954.3).

The issues we are asked to address center upon the requirements, conditions, and limitations of sections 54952 and 54952.2.  Section 54952 states:

“As used in this chapter, `legislative body’ means:

“(a)  The governing body of a local agency or any other local body created by state or federal statute.

“(b)  A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.  However, advisory committees, composed solely of the members of the legislative body which are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.”  (Italics added.)

Section 54952.2 states:

“(a)  As used in this chapter, `meeting’ includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.

“(c)  Nothing in this section shall impose the requirements of this chapter upon any of the following:

“(4)  The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.”  (Italics added.)

1.  Continuing Subject Matter Jurisdiction

The first question presented concerns whether a standing committee, composed of less than a quorum of the legislative body, has “continuing subject matter jurisdiction” for purposes of section 54952, subdivision (b), if it provides advice on budgets, audits, contracts, and personnel matters upon request of the legislative body.  We conclude that the Act’s requirements would be applicable to the subcommittee’s meetings.

With respect to the application of the phrase “continuing subject matter jurisdiction” as used in section 54952, we are guided by well established principles of statutory construction.  “When interpreting a statute our primary task is to determine the Legislature’s intent.”  (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal. 4th 821, 826.)  “To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning.” (Da Fonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.)  “In construing a statute the court will consider the purpose of the law and adopt a construction which will further that purpose.”  (Robinson v. Fair Employment and Housing Com’n (1992) 2 Cal.4th 226, 234.)  “Consistent with the intent of the Legislature, a statute should be accorded a reasonable and common sense interpretation, avoiding absurd or impractical results.”  (Dakin v. Department of Forestry & Fire Protection (1993) 17 Cal.App.4th 681, 686.)

The general purposes of the Act are set forth in section 54950:

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and other public agencies in this State exist to aid in the conduct of the people’s business.  It is the intent of the law that their 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.”

The courts have liberally construed the terms of the Act so as to effectuate its purposes.  (See Rowan v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 235; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 48.)

We note that a “standing committee” is commonly defined as “a committee to consider subjects of a particular class arising during a stated period; specif[ically] a permanent committee of a legislative body.”  (Webster’s Third New Internat. Dict. (1971) p. 2224.)  “Permanent” may be commonly defined as “to endure, remain.” ( Id., at p. 1683.)

As for the phrase “continuing subject matter jurisdiction,” we find that “continuing” means “needing no renewal” (Webster’s, supra, at p. 493), “subject matter” means “matter presented for consideration”  (id., at p. 2276), and “jurisdiction” means “power, right, or authority to hear . . . a cause” (id., at p. 1227).

Applying these common definitions in carrying out the Act’s purposes, we believe that the subcommittee in question has the authority to hear and consider issues relating to budgets, audits, contracts, and personnel matters and that its authority needs no renewal.  As such, it is a “legislative body” under the terms of section 54952, subdivision (b), and its meetings are subject to the Act’s requirements of notice, a posted agenda, and public participation.  Although under its local operating rule, the subcommittee “shall not exercise continuing subject matter jurisdiction,” we do not find such rule provision to be determinative.  The language of the local rule appears inconsistent at best and may not be used to thwart the purposes and requirements of the Act.

We thus follow function over form in carrying out the Legislature’s purposes.  In particular, this subcommittee does not have a limited term, and it is not an ad hoc committee charged with accomplishing a specific task in a short period of time.  Further, it is irrelevant for purposes of section 54952 that the subcommittee is advisory rather than decision making, that its meetings are called by the chair of the subcommittee rather than by formal action of the legislative body, or that some, but not all, of the matters under its jurisdiction are referred to it.  The purpose of the subcommittee is to advise the legislative body when requested on those matters within its continuing subject matter jurisdiction.

We conclude that the meetings of a standing committee composed of less than a quorum of a legislative body are subject to the notice, agenda, and public participation requirements of the Act, if the committee has the responsibility of providing advice on budgets, audits, contracts, and personnel matters upon request of the legislative body.