Councilman Had a Right to Speak His Mind, Free Speech Advocate Says

Editor’s note: Los Alamitos City Councilwoman Marilynn Poe may have been on to something when she suggested Monday night that city leaders brush up on their understanding of California’s open record law known as the Brown Act.

The City Council’s decision to seek prosecution of Councilman Warren Kusumoto for allegedly violating the Brown Act has caught the attention of one of California’s foremost experts on the law. This week Terry Francke, First Amendment attorney and founder and general counsel for the open government nonprofit CalAware, took issue with the city’s interpretation of the Brown Act.

The situation began last month when the council voted to seek prosecution of Kusumoto for a Brown Act violation after he publicly recused himself from closed session council meetings, citing his disagreement with fellow council members over strategies for handling a lawsuit over the city's trash contract. However, this week, the council decided to reverse course and drop the allegations against Kusumoto.

In this editorial, Francke explains why he believes the city was wise to drop the issue.

The about-face no doubt was prompted by the belated realization on the city attorney's part that prosecution of Mr. Kusumoto for a Brown Act violation would waste time and money and go nowhere, for two reasons:

1. Mr. Kusumoto's conduct in distancing himself from the majority inclinations regarding a particular matter in litigation was protected under both the Brown Act and the First Amendment. He disclosed nothing but his own views, and the precise consensus of the majority would have emerged in any event because the actual votes of council members on whether to initiate and/or terminate litigation are matters of public record under the Brown Act. No law gives a local body the right to maintain a false facade of unanimity by suppressing a dissident's views.

2. Prosecution is not a remedy available to punish members who leak from closed sessions in any event. The Brown Act restricts prosecution to members who attend meetings that violate the Act with unlawful secrecy or surprise intended to deny the public of information it is entitled to. Moreover, the Act expressly immunizes members from any liability for "(e)xpressing an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action." Mr. Kusumoto's expression of opinion was far less aggressive and revelatory than that.