Schwarzenegger Vetoes Transparency in Local Government Bill Passed Overwhelmingly by Legislature

In 2006, the California Court of Appeals decision in the Wolfe case found that meetings between a city manager and individual city council members for the purpose of discussing a policy issue that would be discussed at a future public meeting did not inherently violate the Brown Act's prohibition against serial meetings. The court found that the Brown Act does not expressly prohibit serial meetings and, to constitute a violation of the Act, the serial meetings must amount to "more than mere policy related informational exchanges."

The case was brought by a resident of Fremont who alleged that the police chief and the city manager held serial meetings with members of the city council and the members held serial meetings among themselves, regarding a new policy on responding to home invasion alarms that the police chief wanted to implement. He alleged violations of the Brown Act requirement that city council meetings be open and public.

Before a trial on the facts, and based on the language of the law as interpreted, the trial court ruled in the city's favor. The Appeals Court affirmed the dismissal of the case as to the city manager and the chief of police but remanded the case for further proceedings as to the city and the members of the city council.

In footnote 6 of the Court of Appeals stated: "Accordingly, serial individual meetings that do not result in a “collective concurrence” do not violate the Brown Act. This is in contrast to nonpublic “meetings,” as that term is defined in section 54952.2, subdivision (a), which are unconditionally prohibited. § 54953.)"

SB 964 sought to clarify this issue.

The bill was sponsored by the California Newspaper Publishers Association and supported by the California Broadcasters Association Californians Aware and the Los Angeles District Attorney. It was opposed by a number of cities, counties, and local government decisions, and the California Association of School Business Officials, California School Boards Association, and the Association of California School Administrators.

In his veto message, the Governor acknowledged that, "It is of the utmost importance to ensure openness and transparency of local government decision making." He then some what cryptically stated: "This bill seeks to solve a perceived defect in the Brown Act addressed in the Wolfe v. Fremont legal decision." It is unclear from this, at least to this lawyer, whether the Governor even agrees that there is a problem with the Wolfe decision or merely the perception on one. He then goes on to state, without further details: "In its attempt to solve the issue, this bill imposes an impractical standard for compliance on local officials and could potentially prohibit communication among officials and agency staff outside of a public meeting." The Governor then states: "I urge the Legislature to consider legislation next year that more judiciously addresses the problem of serial meetings that result in public policy decisions."

In the absence of a clear idea of what, if anything, the Governor will sign in this area, the legislature should consider an override next year when they reconvene. The Brown Act, central to open and accountable local government in California should not be skirted by attempts to obfuscate decision making. If the Governor agrees and sees the Court of Appeals decision as a real problem, his office should work with the Senate Majority leader to clear this up.