Laguna Niguel Won’t Join State Move Allowing Less Transparent Government

Laguna Niguel officials say they won’t change longstanding policies of public transparency in the wake of softened Brown Act rules.

In June, California cities and counties were given the option of becoming more secretive.

The state Legislature suspended Brown Act mandates that local jurisdictions—cities, counties, school districts, water districts and special districts—post meeting agendas for the public. The suspension also allows local boards and councils to forgo reporting to the public about actions taken during closed-session meetings.

The number of California municipalities choosing to abandon the transparency mandates is unknown.

But Laguna Niguel plans to continue its practice of posting agendas ahead of meetings and announcing the results of closed sessions. According to City Manager Tim Casey, the city just heard about it last week. 

"I don’t anticipate any change in our city council/commission/committee agenda posting practices," Casey said. "Years ago, when the Brown Act was amended to require the posting of agendas at least 72 hours before a meeting, the Commission on State Mandates found the new requirement to be a state mandate. As a result, the state Legislature is supposed to budget money each year to reimburse local governments for the cost of compliance. The city files a reimbursement claim every year using cost estimate guidelines from the commission. Our last claim for FY 10-11 was for $35,463." 

He added that the state has deferred the payment of Brown Act claims for the past six years but has not suspended compliance. 

Laguna Niguel has more than $215,000 in unreimbursed claims dating back to FY 01-02. 

"This appears to be the first time that the state Legislature has not only suspended payments but also compliance with the agenda posting mandate for the next three years," he said. "I suspect that very few local government agencies will change their agenda posting practices since this has now become a standard public information practice."

Jim Ewert, general counsel for the California Newspaper Publishers Association, told the Riverside Press-Enterprise he is “significantly concerned” about the suspension.

Citizens have no legal recourse, if some officials “see it in their best interest to cut a corner here or there,” Ewert was quoted as saying last week.

The League of California Cities is expected to release an official statement on the issue soon, but the group’s communications director Eva Spiegel said for now the suggestion to cities is “stick with the status quo.”

“The league has been very involved with the Brown Act,” she said. “We have always encouraged transparency.”

How the state came to the decision of suspending the Brown Act mandates boiled down to one thing: money.

In California, mandates placed on local jurisdictions by Sacramento must be funded by the state. In the case of the Brown Act mandates, the state was subsidizing nearly $100 million a year by some estimates.

So in an effort to cut expenditures, the state decided to suspend the mandates.

But according to public-agency watchdog Californians Aware, local jurisdictions learned how to milk the system.

They “could get a windfall of cash for doing something they had always done: preparing and posting meeting agendas for their governing and other bodies as mandated by Brown Act amendments passed in 1986—but as, in fact, routinely done anyway since time immemorial to satisfy practical and political expectations,” the nonprofit reported Friday.

In fact, according to Terry Francke of Californians Aware,  the city of Vista claimed $20,174 reimbursement from the state for having posted notices for 109 meetings in 2005-06.

“The city claimed the flat rate for 90 shorter agendas,” Francke said of Vista. “The city claimed 30 minutes of staff time (at a $46.17 hourly rate) to prepare each item on the other agendas. For example, the city council’s Dec. 13, 2005, hearing included 35 agenda items; the city claimed $808.”

The San Francisco Chronicle summarized the history of the Brown Act:

The Brown Act, named for the Modesto assemblyman who authored it, requires that at least 72 hours before a public meeting, local legislative bodies must post an agenda "containing a brief general description of each item of business to be transacted or discussed ... in a location that is freely accessible to members of the public and on the local agency's Internet Web site." The act also stipulates that all decisions made in closed session must be announced publicly.

State Sen. Leland Yee, D-San Francisco, has introduced Senate Constitutional Amendment (SCA 7) that would ask California voters if they want the transparency. The amendment is stalled in committee.

“To anyone who's been watching this issue for a while, the real news is not that the Brown Act can be so dependent on the state budget,” said Francke, the California media law expert and general counsel for what it known as CalAware. “The real news is that 17 people in Sacramento are denying the public the chance to say ‘Enough.’ ”

In the meantime, the suspension could last through 2015, so it appears the public will need to demand transparency from its representatives if it wants to stay informed, Francke said.

Ken Stone of Patch.com contributed to this report.