Wednesday, September 17, 2014

The Brown Act: An Analogy and a Couple of Anecdotes

In my last post, I began expounding on my theory that the Brown Act, California’s open meeting law, is a source of government inefficiency.  I wasn’t suggesting that open meetings are a bad idea, but only arguing the Brown Act, as it has come to be written and interpreted, results in a policy-making process that is less than optimal.

I also explained that an effective and efficient government is important to urbanists because government-adopted laws and policies are much of the reason drivable suburbia continues to dominate our landscape.  It will be hard to unwind the current paradigm and to turn toward urbanism if government is ineffectual.  And it will be even harder if government is chronically short of funds because the electorate is unwilling to fully fund a government that they find inefficient.

However, the burden of proof is on me.  I must convince the reader that my perspective on the Brown Act is legitimate.  I understand that I have a difficult task.  Having spent years on the outside looking in, I know that it’s difficult to grasp how being under the restrictions of the Brown Act can feel like being encased in a mummy bag made of fly paper.

And so, to make my case as best I can, I’ll rely on my old tools of analogy and anecdotes.  I know that they’re not the best tools of argument, but they’re probably the ones I wield best, especially on the slippery task before me.

For an analogy, I’ll ask the readers to consider a situation which they’ve likely experienced in their own lives, a family making a decision about a summer vacation.  Based on personal experience, the decision-making would be an extended and multi-tiered process.

Perhaps the idea of selecting a vacation destination would first be broached over a family dinner.  Over the next few weeks, family members would do their own research and pondering.  Perhaps a couple of family dinners would turn toward the topic.  And casual conversations in hallways or during commercial breaks while watching television might include attempts to find compromises or to build coalitions to support a particular destination.

By the time the subject is ripe for decision, probably again over a family dinner, the outlines of an acceptable consensus would be well-known.  After a verbal free-for-all with interjections and interruptions, and perhaps with a few last concessions or tweaks, a vacation plan would adopted that would please almost everyone.

Now, consider the same process if the Brown Act applied to families.  The initial raising of the question of destination could be done only if all family members had adequate advance notice of the topic.

Individual research would still be allowed, but results could be shared with fewer than half of the family members.

Casual conversations on the topic would be permitted, but might be constrained, with family members concerned that conversations might be relayed to enough other family members that a forbidden serial conversation would result.

And chats during commercial breaks while watching television would be inconceivable because group watching would be disallowed as a non-public meeting.

And when the evening of the decision finally arrived, the dinner table would be observed by scores of strangers and rolling cameras.  Any final debate would be subject to the control of the family chair/parent.  Interruptions and interjections would be prohibited.  Family members might make effective arguments, but some members would be paying more attention to the notes on their intended arguments than to the arguments being made.  Some members might be tempted to be swayed, but would be fearful of being accused of “flip-flopping”.

A decision would still be reached and most years it would be a mostly reasonable decision, but without the carefully tuned nuances which a more natural process would have produced.  And every few years the family would be halfway to the Badlands of South Dakota before realizing that everyone in the car would have preferred to go to Disney World.

If you haven’t worked under the Brown Act, you may find this a caricature.  You’d be wrong.  A cousin, the same one who provided an economics explanation of government inefficiency for an earlier post, responded to my last post with her experience of being a school board member in the California foothills.

During her tenure on the board, she pushed for a new school district policy for several months, feeling that it would improve the educational experience.

The policy finally reached the school board for approval.  But a pair of other school board members had objections.  My cousin would have been happy to accommodate the objections within the proposed policy, but was unable to convey that flexibility during the stilted give-and-take of a board meeting.  The policy was defeated.  A couple of brief cloakroom conversations during the run-up to the meeting would have permitted the policy to be approved, but the Brown Act didn’t allow the option.

Closer to the North Bay, I sit on several City of Petaluma committees.  One of them recently adopted a new policy for another type of oversight by committee members.  A short time later, I found an article in a national email newsletter strongly endorsing the type of policy that we had adopted and suggesting guidelines for effective implementation.

In a non-Brown Act world, I would have immediately sent a link to the other committee members, congratulating them on the wisdom of their action and encouraging them to read the suggestions.  But the Brown Act instead forced me to send the link to the staff person who serves as committee liaison.  He forwarded it to the committee, but the impact was lessened.

On another committee, I was recently chatting with another member on the dais before a meeting.  She’d been pushing for a new policy by which resources could be more effectively targeted toward public needs.  I agreed with her suggestion, so we were quietly discussing strategy.  But then another member tried to join the conversation.  As the committee has seven members, a third participant in the conversation didn’t seem to violate the Brown Act.

But that night, we only expected to have five members in attendance, so three became a majority.  It suddenly became a grey area under the Brown Act.  A good general guideline under the Brown Act is to stay away from grey areas, so I called a halt to the conversation.  And a little bit of momentum slipped away.

I’ve likely claimed enough of your attention for one day.  But I’m not yet done.  In my next post, I’ll conclude the Brown Act discussion with an example of open versus non-open meetings, an anecdote about the silly situations which the Brown Act can create, and a thought about how to protect the goals of the Brown Act while also allowing more efficient government.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (

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