Terry Francke, Foremost Authority on the Brown Act, Speaks on ATC’s Actions

Terry Francke, General Counsel – Californians Aware

Terry Francke is the foremost authority on the Brown Act. He is the most recognized expert who wrote the most recent revisions to the Brown Act itself. I sent him a DVD of the Altadena Town Council Meeting on September 15, 2009 in which the Brown Act debate occurred. Upon reviewing it, Francke was kind enough to write the following letter addressed to me and all of the other Council Members:

Mr. Simmons,

At your request I have reviewed the DVD you provided of the most recent meeting of the Altadena Town Council at which your motion on the Brown Act issue was defeated.  I think there are a few misapprehensions on several sides concerning the Brown Act that should be cleared up.

First, it’s certainly true that the Brown Act does not apply to the Town Council, because it applies only to government organizations, and the Town Council is not that.  I’m not sure what it is, since while it has quite formal bylaws its web site makes no mention of its being incorporated.

Chairman Sund remarked at one point, “to the extent that we can, we follow the Brown Act,” but with respect to the accusations against you and how they were investigated, that contention is questionable.

· If the Council were subject to the Brown Act, not only it but any advisory committee it created would not be permitted to discuss the performance of an elected member of the Council in closed session.  Elected members are not “personnel” or employees whose performance can be discussed in closed session under the Brown Act.
· In addition, the meetings at which such investigative deliberations by an advisory committee were conducted would have to be given due public notice, posted and sent to the local media at least 24 hours in advance.
· Furthermore, the committee would have to permit members of the public to appear and address it concerning the topics of the meeting.
· And of course if the Council were subject to the Brown Act-meaning that it governed an actual local public agency-it would have no power to remove an elected member by simple vote.

If it is the official position of the Town Council that to the extent it can, it follows the Brown Act, then despite the talk about having been briefed on the statute by an attorney, it appears that its failure to follow the Act in this instance allows only two conclusions.  Either the Town Council really does not have a clear understanding of what following the Brown Act entails, or it does, but is confident that no one will question why it is failing to comply with the Brown Act.

There is other cause for suspecting that at least some members of the Town Council have a mistaken understanding of the Brown Act.  One member cautioned the others that amending the bylaws to include a formal commitment to abide by the Brown Act would leave members accountable for violations in civil court, requiring insurance against personal damages liability, or even subject to criminal prosecution.  Not only is this wrong because the Town Council is not subject to the Brown Act and would not be so by amending its bylaws-Brown Act enforcement applies only to bodies governed by the Act-but not even government bodies that are subject to the Brown Act face the risks the member alluded to.

The Brown Act creates no civil liability in damages against either the agency, its employees or its governing body members, for violations of its rules.  Civil actions are confined to establishing that a violation has occurred, preventing one from occurring, or overturning an action taken in violation of some of its central provisions.  As for criminal prosecution, there have been about five or six initiated in the Brown Act’s 56 year history. Only one went to trial, and it resulted in a hung jury.  A conviction imposes on the prosecution a proof burden nearly unique in the law: that the member attended a meeting at which a violation occurred, and did so knowing that the violation was occurring, and intending that the public be deprived of information it is entitled to by law. Realistically, criminal jeopardy under the Brown Act is a myth.

Accordingly, the only harm I can see in amending the Town Council’s bylaws to commit to a serious and informed practice of proceeding as if governed by the Brown Act is that, politically if not legally speaking, it would compel precisely that-a serious and informed effort to adhere.  Someone-not necessarily an attorney-would need to be assigned to get informed enough about the Act to be able to train his or her fellow councilmembers periodically, and to advise the Council when it appeared about to stray from Brown Act standards.  I also believe that it would be advisable in making any such amendment to the bylaws, if only to avoid subsequent bickering or confusion as to why this or that rule should not or could not be heeded, to identify as precisely as possible which provisions of the Brown Act were not going to be emulated-and in doing so to discuss why the departure was necessary.

Without such a reasonably formal and serious commitment to feasible Brown Act compliance, I can sympathize with your sense of injustice and deprivation of due process in how you are being treated.

Cordially,

Terry Francke
General Counsel
Californians Aware