San Diego City Councilmember Donna Frye is convinced that the city attorney, mayor and City Council have violated and continue to violate the Brown Act with respect to the noticing and use of closed sessions.
The intent of the Brown Act is clear: 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.
Frye is asking that the council change the way it's been doing business and adopt new rules for the noticing and conducting closed-session meetings.
It's evident from comments made at the council's March 15 meeting that members are often unclear about what's confidential and what's not. Councilmember Brian Maienschein reported his frustration that he was often confused about what he'd heard in closed session versus what he'd heard at a press conference or read in the newspapers. Others claimed there's often no difference between items heard in closed sessions versus those in open session.
These statements alone indict current practice because they reveal that several parties involved aren't clear why they are in closed session in the first place.
The city attorney and council have clearly given in to human nature that would prefer to do anything sensitive in private -- whether it gives you a strategic advantage or not.
It's always easier to debate issues of the day without others watching. But it's the sunshine effect that often prevents poor practices and bad ideas from moving forward. You think twice when you know others are listening. You think more than twice when you know it's going to be part of the legal and public record.
A good example of the council's overly casual use of closed session occurred in December. I was downtown to give public testimony against alcohol advertising at Petco Park. Council members were milling around before the start of the public session and I asked one if he had any last minute questions about my concerns. Imagine my surprise when he said they'd already heard the item in closed session.
Shocked, I asked, "Why were you in closed session on that? Where was the notice?"
"I don't know why," he said. Realizing the problem, he immediately went to ask the city attorney. The response was something the Brown Act defines as "anticipated litigation."
I wondered: Did the Padres threaten to sue? The notice had nothing to indicate this item was even being discussed in closed session. The public hearing of the item went on, but it was clear from the perfunctory way issues were not discussed that my issues had all been vetted in closed session. I was deprived of having my concerns addressed in public.
Turns out that what I was asking the city to do -- to restrict alcohol advertising, could be done legally. But if the council had done it, the Padres might sue. This issue had been discussed in open session by the planning commission, so I wanted to know exactly why it merited closed session. When I pointed this out to one of the city attorneys, he had to admit I had a point.
The problem is that people have gotten used to using closed session as a default. The appropriate use of closed session is important to the public interest. But the abuse of closed session not only deprives the public of being a part of the process and it allows negotiations that would never see the light of day if they were held in public.
The Chargers ticket guarantee comes to mind.
Recently, a former member of the council told me the ticket guarantee was cooked up at the last minute in closed session. There was never any public debate and the council was cowed enough not to stand up for a better process -- a process where the terms could be debated publicly.
Sadly, the public is paying the price.
Councilmember Frye's point is that the public is tired of paying that price. As pointed out during testimony, if the use of closed session is such a good deal for the public, then why haven't the deals been so good?
The council and mayor must do everything to make the closed-session notices meaningful, to allow the public to testify prior to going into closed session on any item and to limit the use of closed session to matters that are truly confidential.
In addition, Atkins and Frye should be allowed to form a committee to review all relevant standing rules and return with a proposal to the rules committee within 60 days.
Closed sessions must be more than just deal-making sessions where parties decide the particulars amongst themselves such that when the deals are revealed in the finally required public hearing they have already been decided.
That is seldom in the public's interest and it's an abuse of the public process.
Chase is editor of San Diego Earth Times and chair of the mayor's Environmental Advisory Board. E-mail her at firstname.lastname@example.org.