Over recent
posts, I’ve become ensnared by a daisy chain of subjects. I argued in favor of the tax measures on November
ballots in many communities. My argument
was “We built this stuff, we really should take care of it.”
That stance led
me to a proactive argument against those who might argue that government
doesn’t deserve more revenue because it’s inefficient. My grounds for this second argument were that
most human activities are inefficient and it’s unrealistic to ask government to
exceed our own skills. Besides, we ask
government to do a number of tasks that are particularly prone to inefficiency.
From there,
I nominated the Brown Act, California’s open meeting
law, as a particular cause of government inefficiency, including an analogy and a handful of anecdotes to support my argument.
Today, I’ll
conclude my thoughts on the Brown Act with a case history of open versus closed
meetings, a silly result from the literal application of a Brown Act equivalent,
and a timid suggestion about an alternative approach to the open meeting law.
Throughout
these arguments, I’ve been explaining that, as an urbanist, I care about these
issues because it’ll be harder to turn ourselves toward urbanism if we continue
to hamstring government with ill-fitting laws and paltry revenue. When we lack resources, we tend to stay in
our rut, even when the rut is what is causing us to lack resources
To begin, I’ll
offer a comparison of closed and open meetings.
I’m not suggesting that closed meetings are always the preferred
solution. I don’t believe that. But closed meetings can sometimes work well.
Many years
ago, while living in Oregon, I had a chance to observe two parallel
organizations, one working under a closed meeting standard and the other under
an open meeting process.
The first
organization was the design review committee of a large
residential/recreational community for which I was the lead consulting engineer. In addition to my engineering duties, I also served
on the design review committee. In
addition to me, the committee included a pair of architects and two homeowners
who had experience in land-use planning and development.
The
homeowner association rules called for the committee meetings to be
closed. We took full advantage, closing
the doors to the conference room and engaging in two hours of vigorous
discussion and debate. Sometimes we got
raucous, at other times we slid into political incorrectness, but I remain
convinced that we did a fine job, often finding unexpected consensuses that
made the project an architecturally distinguished place.
But, predictably,
the homeowners affected by our process often disagreed with my assessment of our
performance. Homeowners proposing new
homes believed that they could convince us to reduce the standards if only they
could talk with us. Neighbor adjoining
proposed new homes believed that they could convince us to impose stricter
standards if only they could talk with us.
Although their beliefs were diametrically opposed, they made common
cause and approached the development president, asking for our meetings to
become public.
There was an
older, well-established destination resort a few miles from town. It was a successful place, although the
architecture was less distinguished than at my project. Also, their design review meetings were open
to the public. So the president of my
project asked a couple of committee members, including me, to attend one of
their meetings.
It was an
eye-opening experience.
The meeting
room was well-filled. As each home was
announced, the homeowner, and perhaps also the architect, would speak in
defense of the home design. And then
several neighbors would also speak, usually asking for design changes.
When the
speakers were done and without any committee discussion, one of the committee
members, the assignment seemed to rotate, would pull out a piece of paper, read
off a grammatically concise but bureaucratically bland list of perhaps twenty
proposed conditions. The committee would
then vote unanimously to approve the project.
I never
learned the source of the list of conditions, whether the committee had met
secretly beforehand to reach conclusions or whether staff has prepared the
list. But the effect was more poorly
staged than an Eastern European show trial before the parting of the Iron
Curtain. The closed meetings at my
project were resulting in more comprehensive design review and the results were
evident on the ground.
Some will
argue that committee debate could have followed public testimony and they’d be right. But the closed meetings in which I
participated needed two full hours. The
open meeting that I observed took about two-and-a-half hours. Combining the two and adding an allowance for
a more stilted debate in front of observers, a meeting time of more than five
hours seemed likely, which is well beyond the endurance of most committee
members and the observing public. Nor do
I think it would result in better decisions.
Indeed, I expect the reverse would have been true.
My companion
and I reported our observations back to the president of my project and our
meetings remained closed, at least for awhile longer.
I know this
is only one comparative example, but even one data point is enough to establish
that open meetings aren’t always better.
Brown Act-type
rules can also lead to farce.
Later during
my time in Oregon, I found myself as a participant in an impromptu theatre of
the absurd because of the Oregon equivalent of the Brown Act. (I don’t recall the name of the Oregon law,
but it functioned much like California’s Brown Act.)
A good
friend was an Oregon legislator. He and
his wife hosted an annual New Year’s Eve party which all the local politicos
attended.
Late on New
Year’s Eve 1999, I was deep in a conversation with the Oregon Secretary of
State about alternative voting rules when my friend tapped me on the shoulder,
asking me to babysit a County Commissioner.
Under Oregon law, a majority of any public body can’t simultaneously attend
the same social event. The local County
Commission included only three members, so the limit was one Commissioner at a
time.
A
Commissioner, a particularly talkative and congenial sort, had been at the
party since it began. But a second
Commissioner had now arrived. The first
Commissioner was heading toward the door, but might take several minutes to
tell final stories and to offer final New Year’s wishes. My friend wanted me to keep company with the
second Commissioner on the front steps until the first Commissioner departed.
The
newly-arrived Commissioner was a good friend and I was happy for the
opportunity to chat with her. But this
was the high desert of Oregon at the end of December. After a week of freezing temperatures and
hoarfrost, the weather had finally begun to change in the hours before the
party and a light snow was falling through the frost-laden trees.
And so I
found myself chatting with a County Commissioner on the uncovered steps as the
snow swirled around us. Occasionally,
we’d take a break to shake the flakes out of our hair and to brush the snow
from each other’s shoulders.
Eventually,
the first Commissioner exited the party, exchanging greetings but no political
talk on the front steps, and we were allowed to enter the house. I’ve often wondered if it truly would have
been a violation if the second Commissioner and I had instead waited in the
heated entry hall, but as is the case with open meeting laws, paranoia is often
the governing standard.
Besides,
neither of caught a cold and I collected a great anecdote about the absurdities
to which open meeting rules can sometimes reduce us.
Before
closing, it seems that I have should have an alternative approach to propose to
the Brown Act. But I don’t. The Brown Act addresses a legitimate
concern. It does so in a heavy-handed
fashion by which public officials seem to be presumed guilty immediately upon
assuming office, but the concern about misbehavior remains legitimate. Dismantling the Brown Act shouldn’t be an
option.
But I’ll offer
one timid and partial suggestion. Perhaps
the restriction on serial meetings can be lifted, with all officials allowed to
communicate with all other officials.
However, those communications could be only via email, going through a
server on which all communication can be viewed and searched by the
public. To learn the position of Councilmember
Smith on a new parking standard, one could search for his emails on the subject.
Perhaps any
public communication to the council could go through the same server, so the
positions of one’s neighbors on the parking standard could also be checked.
I’m not
arguing that this public email server would be a panacea. Any communication through it would be awkward
and stilted. But it might be a marginal
improvement over the current rules, and marginal improvements toward the cause
of more efficient and effective government are worth pursuing.
With that, I’ll
leave the Brown Act for now.
For my next
post, I’ll also leave the upcoming election behind and return to my version of
catnip, the subject that I just can’t seem to let alone. Block parties. I’ve been invited to one final end-of-the-summer
block party in Petaluma and have been promised an interesting story about the
organizers’ effort to get their party approved by the local authorities, which
I plan to share.
As always,
your questions or comments will be appreciated.
Please comment below or email me.
And thanks for reading. - Dave Alden (davealden53@comcast.net)
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