Protecting the people’s right to know

It has been said that “the people have a right to know.” But not all politicians and political agencies be­lieve that. There unquestionably are reasons that public agencies should meet in private, away from the pry­ing eyes of the public and the media. However, those reasons should be and are limited. Actions and deliverations of legislative (public) agencies gener­ally should be taken and aired under public scrutiny. The reasons should be obvious: public agencies created by and public officials elected by the public.

In 1972, the Daily Times-Advocate, of which I was the editor, sued the city of Escondido for what the newspaper perceived was a blatant violation of the public trust, of the “people’s right to know.” The suit charged the city with a violation of the state’s Ralph M. Brown Act, which requires the legislative bodies of public agencies to meet in public except to discuss personnel issues or litigation.

In the T-A’s filing the suit, there were no splashy headlines that indi­cated some sort of feud with the city, just a few paragraphs in a brief story on an inside page; there was no jury trial, just a hearing before a Superior Court judge that ruled in favor of the Times-Advocate and against the city; there was no fine or penalty, just an admonition by the court that the city was, in fact, in violation of the Brown Act.

Let me set the stage for the circum­stances that culminated in the suit. The Escondido City Council in 1971 for several months had been skirting the edge of potential Brown Act vio­lations, having met in executive (pri­vate) sessions 12 times in five months.

In June of 1972, the City Council unanimously voted to create a seven- member, ad-hoc advisory committee to study and recommend an opinion on a rate increase request by the Es­condido Cable TV Co. (This was in the days of cable television infancy, when city councils were empowered to act on rate increase requests.) May­or Wil Mason was the council’s lone representative on the committee.

By mid July the committee had met twice in open session, of which both meetings had been attended by a T-A reporter. Then, it was announced that the committee had voted 4-3 to hold an executive session (closed to the public) for its third and final meeting.

On the day of the meeting (the last week of July), the T-A reporter, Herb Pasik, was denied admission. Our ob­jection was to no avail. We questioned why the committee’s first two meet­ings were public, but decided the next meeting should be private. Why the secrecy? What was there to hide? The committee was not discussing person­nel or litigation. It was discussing

 

The city’s argument was that the committee was not subject to the Brown Act because it was a one-time, ad-hoc committee that did not contain a quorum of the City Council.

Because of the City Council’s cava­lier attitude toward the Brown Act, indicated by its frequent secret meet­ings, I suggested to T-A publisher Carl Appleby that we sue the city, alleg­ing that the advisory committee was subject to the Brown Act and that its closed meeting was illegal.

He agreed and ratained, to repre­sent the Times-Advocate in court, Kim Fleming, a former Escondido city at­torney.

The Brown Act, enacted by the California Legislature and signed into law in 1953 by Bov. Earl War­ren, reads in part: “. . . the legislature finds and declares that the public com­missions, boards and councils and the 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 Act also says: ““. . . legislative body means the governing board . . . of a local agency, or any board or commission thereof, and shall include any . . . committee on which officers of a local agency serve in their official capacity as members.” (The mayor was a member of this committee.)

Another section of the Act reads: “. . . legislative body also includes any advisory committee of a local agency created by . . . formal action of a gov­erning body of a local agency. Meet­ings of such advisory committees . . . shall be open and public (This was an advisory committee created by a for­mal resolution of the City Council.)

A few weeks after the suit was filed and after the hearing before a Vista Superior Court judge, the court called in favor of the Times-Advocate, con­firming that any ad-hoc advisory com­mittee created by a formal action of the parent legislative body is subject to Brown Act regulations.

It was all after the fact. What had the T-A accomplished, filing a suit after the fact, which resulted in no fine or penalty for the city (neither of which we had requested)? We got a confirmation from a judicial body that committees and commissions for­mally created by the legislative parent agency were, in fact, subject to the provisions of the state’s open meeting law.

Ron Kenney was a reporter and editor with the former Daily Times- Advocate from 1952 to 1979 and was a copy editor on the editorial pages of the San Diego Union-Tribune from 1985 to 1997.