by Terry Francke
On Sept. 10 Superior Court Judge J. Michael Brown heard oral arguments in the case of the North Coast Journal vs. the Humboldt County Board of Supervisors, a lawsuit filed when the Journal learned that a contractor had been invited into a closed personnel session of the board. As of presstime, no decision has been made. Submitted along with the Journal complaint was this amicus curiae, a friend-of-the-court brief, by Terry Francke, executive director of the California First Amendment Coalition.
The California First Amendment Coalition urges this Court to grant plaintiff the relief sought in the captioned action.
So far as CFAC is able to determine, this case presents an issue of first impression not only for California agencies subject to the Ralph M. Brown Act but for any public agency subject to comparable open meeting laws in other jurisdictions nationwide.
The novel issue as CFAC sees it is whether a legislative body of a local agency, in holding a closed session authorized by law, may invite into the closed session -- and thereby into its otherwise confidential fact-gathering and deliberative process -- selected members of the community who have been appointed to some advisory role on a committee created by the board.
CFAC does not question the lawfulness and utility of advisory committees or their role in general. CFAC does question whether a citizen's presence on such a committee clothes him or her with such special authority and responsibility -- such materially "official" status -- that he or she may be privy to discussions, deliberations and disclosures from which other members on the community are excluded.
If such were the law, any board of supervisors, board of education or city council, for example, could effectively decide which members of the community are supportive enough of its current policy and administration to warrant an exclusive ringside seat -- or even place at the table -- in otherwise unobserved deliberations on such matters as the hiring, evaluation, compensation and discipline or discharge of personnel; the defense or prosecution of litigation; the course of bargaining with public employee unions or with parties in real property negotiations; or any other matter on which the governing body has authority to hold closed sessions.
Nor is it an imaginative stretch in today's California to predict that such "insider" status could be accorded -- by mere appointment of the favored person to some advisory committee -- to political supporters or even campaign contributors.
There are two ways in which a legislative body may collectively receive citizens' advice on sensitive as well as routine matters. One is at the initiative of the citizen, by availing himself or herself of the opportunity to address the body at a public meeting or to send a letter to the body. These channels of communication have the added advantage -- for the community especially -- of being conducted on the public record. The other means of getting public advice and participation is through appointment of an advisory committee including citizens who are not agents or employees of the agency in questions. That process also involves communication at open meetings and, in any final report, on the public record. In contrast, secret advisory processes are troubling because there is no way for the public to determine what the advice is, or indeed whether it involves some special interest or influence that at the very least should be publicly detectable.
At the very least -- in the best possible world where undue influence or corruption were not real dangers -- it is simply antidemocratic that a handful of persons should, by virtue of simple discretionary "official" appointment, be deemed privy to a level of confidence and informed involvement with government that is denied to the majority of the community. Nothing in the Brown Act, certainly, contemplates or is consistent with such a two-tiered distribution of civic rights.
There are situations in which small samples of the citizenry are and always have been given some degree of confidentiality for their role in official fact-gathering or deliberative processes, or both. The grand and petit juries, however, are performing very different and very closely supervised functions. They are not simply invited into the councils of the elected government for an elite share in necessarily confidential matters. And they play a role which institutionally is designed to be shared as widely as possible by ordinary people, not as experts or interested players, but precisely as disinterested ... ordinary people.
If a government body wishes to open its lawfully and ordinarily closed doors to the observation or participation of those who are neither its employees nor its agents, let it throw the doors wide open and extend the opportunity to all.
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