The Humboldt County Fair Association violated California’s open meeting laws when deciding to advance a seven-day fair calendar during closed session Feb. 18.
The amended fair dates — which will see the fair start Aug. 16 and close Aug. 24 — were formally approved by the board at its regularly scheduled Feb. 24 meeting after being pulled from the meeting’s consent calendar before being passed after a motion from Director Clint Duey and a second from Director Greg Gomes. (For more on the rest of the Feb. 24 meeting, click here.)
Following direction of the Executive Committee, staff had previously proposed the association put on a five-day fair, though when it was brought to the board some directors voiced misgivings. The board then met in closed session Feb. 18 for a performance review of CEO Moira Kenny that was to include an evaluation as well as discussion of her goals for the organization. Kenny told the North Coast Journal the board reported out of that closed session that it would pursue the seven-day fair, approval of the revised calendar to appear on the consent calendar for the Feb. 24 meeting.
The Journal — as reported in the story “Fair Board Faces Critical Racing Decision Tomorrow” posted to the paper’s website Feb. 23 — notified Kenny that the board appeared to have violated the Ralph M. Brown Act, which is intended to ensure discussion and decisions important to the public occur in public.
At the Feb. 24 meeting, Director Jack Rice, who was absent from the board’s Feb. 18 meeting, quizzed his fellow board members on the matter, saying he read an article about the decision and wanted to know what had been discussed.
Kenny responded that they had spoken with legal counsel and were advised not to comment on “the substance of legal claims in open session,” apparently referring to the allegations of a Brown Act violation in the Journal’s article.
“You can’t talk about fair dates in a closed session,” Rice responded, repeating that he would just like to know the substance of the discussion.
Duey said that because the dates were discussed in closed session, directors could not then talk about them in an open session. The dates were ultimately approved.
David Loy, legal director for the nonprofit First Amendment Coalition, said the board’s discussion of fair dates in closed session constituted a “clear violation” of the Brown Act.
“It is allowed for a Brown Act body to go into closed session to do employee performance review, but the closed session should only be about that topic,” said Loy. “You can’t shoehorn another topic into the closed session that should be in open session, and the topic of fair dates is a quintessential open session item. … And just because they then ratify (that decision) in a later open session doesn’t cure the original violation. If something is supposed to be discussed in open session, then the public has the right to hear the entire discussion.”
And Loy said the assertion that directors couldn’t disclose the substance of the improper closed session discussion of race dates is also legally false.
“As a general matter, it is correct that the Brown Act prohibits disclosure of ‘confidential information’ that is acquired by being present in a valid closed session,” Loy said, noting that Government Code section 54963(a) defines “confidential information” to be information that is communicated “specifically related to the basis for the legislative body to meet in closed session.”
“The statute then goes on to say it is not a violation of the statute to disclose information from a closed session that is not ‘confidential information,’” Loy continued. “They can’t go into closed session for an unlawful reason and then conceal why they did what they did on the grounds that it’s confidential.”
When a public board, council or commission violates the Brown Act, it can potentially lead to the nullification of any action taken during the violation. Government Code section 54960.1(a) provides that any member of the public can provide the agency with a “cure and correct” demand in writing within 30 days of the violation. The agency then has 30 days to take action — either by denying the violation took place or curing the violation by having the board, council or commission repeating the discussion and action in open session after meeting proper noticing requirements. If the local agency does not respond or take action to cure the violation within that 30-day period, whoever made the “cure and correct” demand then has 15 days to initiate a court proceeding to nullify the action in question.
North Coast Journal news editor Thadeus Greenson contributed to this report.
Editor’s Note: This story first appeared in the Feb. 27 edition of The Ferndale Enterprise.
This article appears in ‘Breathing Room’.
