In recent weeks, I’ve been writing about the upcoming elections, including the tax measures on many ballots that would buttress municipal solvency in the aftermath of the great recession. Among my subjects was a pre-emptive argument against those who would offer government inefficiency as grounds for voting against tax measures.
My urbanist reason for defending government is that we need an effective and adequately-funded government if we’re to abandon the reigning land-use paradigm and to move toward one that is more environmentally and financially sustainable.
In the previous post, I argued that it wasn’t fair to blame government for inefficiency when most households and corporations are similarly inefficient. A well-educated reader, who also happens to be a cousin, added her explanation that the types of services provided by government, most of which aren’t suited to private enterprise, are prone by their nature to be inefficient.
But that post didn’t exhaust the topic of government inefficiency. At least in California, there is one more cause of inefficiency that justifies its own discussion. That cause is the Brown Act.
Originally proposed in 1953 by Assemblymember Ralph M. Brown, the Brown Act has a laudable goal. As described by Wikipedia, that goal is to guarantee “the public’s right to attend and participate in meetings of local legislative bodies.” I can’t imagine anyone arguing against that goal.
And it’s true that the Brown Act fills a need. A reader has been emailing me about a land-use action near his home in Pennsylvania, where the Town Council refused to let the public review application documents for a new big box until thirty days after the Council gave its approval. Not thirty days before, but thirty days after. The public was barred from examining the site plans, traffic study, etc. even as the Council was voting. The Brown Act prevents that abuse of power in California.
Also, given that at least four members of the California Legislature are currently facing criminal charges, I can’t reasonably argue that public officials are as pure as driven snow, so some level of regulation is appropriate.
However, the Brown Act has expanded greatly since 1953, restricting more and more of the conduct of public officials. I expect that each expansions seemed reasonable on its own, but the result of the gradual accumulation of rules has been to strip elected and appointed officials of many of the tools of effective government.
An email to a majority of fellow members of a public board encouraging a course of action? Banned. Phone calls to the same folks suggesting an alternative perspective on a knotty problem? Banned. A casual conversation between the same people at a public function? Banned. And many public officials stay even further away from the strict prohibitions of the Brown Act for fear of being inadvertently implicated in a violation, such as an email to a fellow public official that the other official forwards to the entire body.
In the U.S., we embrace the stories of Daniel Webster, Henry Clay, and Everett Dirksen imagining new problem-solving strategies and then honing those strategies and building consensuses by combining grand oratory with cloakroom cajoling. But as much as we honor that model, we reject it in our contemporary world.
In place of the reasoned debate which the founders of democracy considered essential to effective government, the Brown Act largely results in public officials sitting on a dais exchanging lists of platitudes and only rarely engaging in substantive discussion. Anyone who has attended a city council or board of supervisors meeting should be familiar with the stilted and unproductive communication style.
Under the contemporary governance model, many decisions are reached through private study, followed by a public hearing during which citizens speak to officials whose minds are largely made up, a “discussion” that is largely comprised of officials talking past each other with bullet point lists, and a perfunctory vote. There are still the moments when good ideas and effective compromises fight through the debris of process and rise to the surface, but those moments are few.
With the public officials restricted in their ability to construct solutions, much of the responsibility for promoting new ideas and strategies moves to municipal staff. However, staff members have their own restrictions.
I find most staff members to be reasonable and trustworthy folks. A city employee I knew in another state used a “childcare rule” for judging those with whom she worked. Before engaging with someone, she would ask herself whether she’d be willing to entrust her child to the person and would let the answer govern her conduct. I find the rule reasonable and have often invoked it in my own dealings. And I find that I generally have more trust in staff members than in public officials.
However, staff people aren’t always the right folks to be on the leading edge of change. Historically, job preservation has always been a concern among staff members, many of whom are trying to put down roots in a community. And pension reform only makes the situation worse. An extended period between employment positions covered by a municipal pension plan can result in loss of pension benefits, which discourages staff members from being mavericks.
So we’ve created a world in which the long-term success of our communities demands that we consider alternative land-use strategies and yet we’ve created financial incentives for public staff to not rock the boat and restricted the tools with which public officials can push for change. If we were to set ourselves the goal of creating a system in which a flawed status quo survives despite its deficiencies, we could hardly have done better.
I’ve always believed in the dicta that criticism should be constructive, combining suggestions for improvement with disapproval of the current situation. However, I struggle for ideas about reducing the stranglehold of the Brown Act. But I’m open to ideas from readers. In my next post, I’ll describe a few anecdotes from my experiences with the Brown Act and also perhaps share some newly-received thoughts about improvements.
As always, your questions or comments will be appreciated. Please comment below or email me. And thanks for reading. - Dave Alden (firstname.lastname@example.org)